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V1147-17 12 May 2017 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · fideicomiso de residuo

Residual trustee taxed on full ownership and may claim refund for bare ownership

A query was raised regarding whether a fiduciary heir must be taxed on the entire inheritance and if the residual beneficiary would face double taxation. The DGT clarifies that while the fiduciary is taxed on full ownership, they are entitled to a refund of the portion corresponding to the bare ownership, provided the transfer to the beneficiary is duly justified.

The question raised

The doubt raised by the applicants is whether, when the mother becomes the heir at 81 years of age, she will be taxed on the entirety of the inheritance received from the deceased daughter, and subsequently, upon the residuary fideicommissary daughter receiving what remains of this inheritance, which her mother could hardly diminish, thus being more or less the same inheritance she would receive as a residuary fideicommissary substitute, she would have to be taxed on the same assets as if the fiduciary mother had not paid any tax.

The DGT's ruling

The trustee who has the power to dispose of the assets must settle the tax for full ownership. However, they shall be entitled to a refund of the portion of the tax corresponding to the bare ownership if the transfer of the assets to the person indicated by the testator is justified. For their part, the residuary fideicommissary shall settle the tax on the assets they receive, which shall be those of which the trustee has not disposed for consideration.

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