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A taxpayer over the age of 65 has enquired whether the property they vacated due to divorce still qualifies as their main residence for Personal Income Tax (IRPF) exemption purposes. The Directorate General of Taxes (DGT) has ruled that, in accordance with Supreme Court jurisprudence, the property is considered a main residence if the spouse remaining in the property continues to use it as such.
Question posed: Whether, for the purposes of the exemption provided in article 33.4 b) of the LIRPF, the aforementioned residence is considered a habitual residence.
In cases of separation, divorce, or annulment that compel a spouse to leave the domicile, it shall be understood that they transfer the habitual residence if it constitutes the habitual residence of the spouse who remained in it at the time of the transfer or during the two preceding years. This criterion applies exclusively for the purposes of the exemptions provided in articles 33.4.b) and 38 of the LIRPF. Furthermore, the residence could regain its status as habitual if the taxpayer resumes residence therein for three years or due to justified circumstances.
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