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V2162-20 26 June 2020 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · transmisión onerosa

Taxation on 50/50 property acquisition by couples depends on the type of prior contract with the developer

A taxpayer inquired whether she and her partner could acquire a property with a 50% share each, despite her having contributed more funds. The Directorate-General for Tax Affairs (DGT) ruled that if a private sale and purchase agreement already exists, the portion she transfers to her partner is subject to Transfer Tax (ITP) and Stamp Duty (AJD). However, if only a deposit agreement (contrato de arras) is in place, they may acquire it in equal shares without additional taxation.

The question raised

Whether it is considered that the taxpayer and her partner acquire the property, at 50 percent each, when at the time of signing the public deed of purchase and sale, each of them has contributed the same amounts.

The DGT's ruling

If a private purchase and sale agreement has already been formalized, the couple acquires their 50% through an onerous transfer from the taxpayer, subject to Transfer Tax (ITP) and Stamp Duty (AJD). If only a deposit agreement (contrato de arras) has been formalized, both may acquire 50% each upon executing the purchase and sale before a notary without the taxable event occurring. Regarding joint accounts, the ownership of the funds depends on the original source of the funds and must be proven to the Administration.

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