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A taxpayer inquired whether the allocation of his ex-wife's habitual residence (which was her separate property) is exempt from Transfer Tax (ITP). The Directorate General for Tax (DGT) ruled that the exemption for the dissolution of marriage does not apply, as there is no excess in the allocation, but rather an onerous transfer of separate property.
Question posed: Whether the exemption established in Article 32.3 of the Regulation of the Tax on Property Transfers and Documented Legal Acts may be applied.
The transfer of the primary residence, which is the separate property of one spouse to the other, constitutes an onerous transfer of assets according to the TRLITPAJD. The exemption provided in Article 32.3 of the RITPAJD is not applicable because there is no excess in the adjudication, but rather an inter vivos transfer. If the price paid is lower than the market value, the difference shall be considered a gift subject to Inheritance and Gift Tax.
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