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V1716-24 11 July 2024 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · ganancia patrimonial

Exemption for sale of primary residence may apply if the remaining spouse maintains residency

A taxpayer over 65 is inquiring whether they can claim an exemption for the sale of a property they ceased to occupy following a divorce in 2010. The Directorate General for Taxes (DGT) has ruled that, in accordance with Supreme Court jurisprudence, the property is considered the primary residence of the spouse who left the home if the other spouse remained in it.

The question raised

Question posed: Whether said dwelling is considered a primary residence for the applicant for the purposes of the exemption under Article 33.4.b) of the Personal Income Tax Law (LIRPF).

The DGT's ruling

In cases of separation, divorce, or annulment that compel a spouse to leave the home, the primary residence requirement is understood to be met if the dwelling constitutes the residence of the spouse who remained in it at the time of the transfer or during the two preceding years. Therefore, the spouse who left may also benefit from the primary residence exemption if the other legal requirements are met.

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