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V1630-14 25 June 2014 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · nulidad de pleno derecho

Recovery of property following judicial annulment of a sale is not subject to transfer tax

A query was raised regarding whether the registration rectification required to return estates following the declaration of absolute nullity of a sale due to simulation is subject to ITPAJD (Transfer Tax). The DGT ruled that the recovery does not constitute a new transfer, although the deed could be subject to Stamp Duty if required.

The question raised

Whether the registry rectification consisting of returning to the taxpayer the estates that were transferred by virtue of a sale and purchase agreement, now declared null and void by operation of law, is subject to the Transfer Tax and Documented Legal Acts Tax.

The DGT's ruling

The recovery of real estate by the sellers does not constitute a new transfer, but rather the rescission of the original sale and purchase agreement, and therefore is not subject to the transfer tax on onerous asset transfers. If registration requires a public deed, it shall be taxed under the tax on documented legal acts provided that the requirements of Article 31.2 of the TRLITPAJD are met. If the judicial sentence is sufficient for registration, there shall be no tax liability as it does not constitute a first copy of a public deed.

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