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V1623-23 8 June 2023 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
OTRO · sociedad de gananciales

Gratuitous contribution of property to a community of property is not subject to IHT or transfer taxes

A query was raised regarding whether the gratuitous contribution of separate property to a community of property (sociedad de gananciales) is subject to taxation. The DGT has determined that it is not subject to Inheritance and Gift Tax because the community of property is not a taxable person, nor is it subject to transfer taxes due to its gratuitous nature.

The question raised

Taxation of the gratuitous contribution of real estate to the community property regime.

The DGT's ruling

The gratuitous contribution of separate property to the community property regime does not constitute a donation to the other spouse, but rather an enlargement of the community assets. It is not subject to ITPAJD (Transfer Tax and Stamp Duty) on onerous transfers as it is not an onerous transaction, nor to Inheritance and Gift Tax because the community property regime, lacking legal personality, is not a taxable person. The public deed for the contribution of real estate could be subject to ITPAJD for documented legal acts, but it will be exempt pursuant to Article 45.I.B.3 of the TRLITPAJD.

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