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V1111-18 27 April 2018 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · sociedad de gananciales

Asset allocation in community property dissolution is exempt, but excesses involving separate property are taxable

A married couple wishes to liquidate their community property regime to switch to a separation of assets regime. The DGT clarifies that the allocation of community assets is exempt from Transfer Tax (ITP) and Stamp Duty (AJD); however, if an excess in allocation occurs due to the inclusion of separate property, this excess must be taxed.

The question raised

Whether the proposed operation would be exempt from transfer taxes and stamp duty.

The DGT's ruling

The allocation of assets in settlement of the community property estate is exempt from Transfer Tax and Stamp Duty pursuant to Article 45.I.B.3 of the Recast Text. However, any excess in the allocation constitutes a transfer of assets. If the excess results from the allocation of a separate asset, it is not considered a necessary or inevitable consequence of the dissolution, and therefore shall be taxed under the modality of onerous transfers of assets.

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