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V1414-23 25 May 2023 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · pérdida patrimonial

Requirements for computing capital loss due to credit default in Personal Income Tax

The DGT states that the investment constitutes a credit right and a loss can only be recognised when the conditions of letter k) of article 14.2 of the Income Tax Law are met.

The question raised

Possibility of computing a capital loss in the IRPF-2022 for an investment in a company through a real estate crowdlending/crowdfunding portal, as "the investment money was delivered years ago to real estate developers and once the money was collected they fled to Dubai, which constitutes a fraud and there are several affected parties".

The DGT's ruling

The investment does not generate an immediate capital loss due to the alleged fraud, as a credit right exists against the company. The loss may only be imputed when the requirements of Article 14.2 letter k) of the Personal Income Tax Law are met, such as the effectiveness of a debt write-off in insolvency proceedings or the passage of one year in a judicial credit enforcement proceeding. The fact that a judicial process exists which is not an enforcement proceeding does not allow for the application of the loss under the one-year period assumption.

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