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V1503-23 2 June 2023 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · mínimo por descendientes

The spouse who is not entitled to the minimum for descendants may not apply the deduction for disability

An inquirer asks whether a spouse who contributes to Social Security may apply the disability deduction for a disabled aunt, given that the legal guardian neither works nor receives pensions. The DGT responds that this is not possible because the non-guardian spouse is not entitled to the minimum for descendants and the principle of analogy cannot be applied.

The question raised

Question posed: In the case of a married couple filing a joint tax return, it is questioned whether, if only one of the spouses is entitled to the minimum for descendants due to a judicially incapacitated aunt for whom they are the legal guardian—meeting the legal requirements as stated by the inquirer, but without the guardian performing any self-employment or employment activity or receiving Social Security benefits during the fiscal year—while the other spouse does have Social Security contributions throughout the year, whether the latter would be entitled to the deduction for a dependent descendant with a disability.

The DGT's ruling

The spouse who is not the legal guardian is not entitled to the minimum for descendants, neither individually nor through a joint tax return. To apply the deduction for descendants with disabilities under Article 81 bis of the LIRPF, it is necessary to be entitled to the minimum for descendants and to meet the requirements regarding activity or benefits. Since the other spouse is not entitled to the minimum, they may not apply the deduction nor request the transfer of the right.

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