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A person wishes to transfer their 50% share of an urbanized plot of land to the co-owning company. The DGT analyzes whether the operation is subject to VAT due to business activity or to Transfer Tax (ITP) due to excess adjudication.
Question posed: Subjectivity of the described transfer to Value Added Tax. Consideration of the community of property as the taxable person for the operation. In the event of non-subjectivity to Value Added Tax, subjectivity to Transfer Tax and Documented Legal Acts.
If the transfer is not subject to VAT because the community of property does not act as an entrepreneur or professional, the adjudication of the entirety of a divisible asset to a single co-owner constitutes an excess adjudication. This excess is considered an onerous patrimonial transfer subject to ITP. The exception of Articles 821, 829, 1,056, and 1,062 of the Civil Code does not apply because the asset is divisible. In the event of proportional division without excess, it would only be subject to tax on the share of Documented Legal Acts.
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