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V2219-22 24 October 2022 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · hecho imponible

Funds transferred by an ex-spouse may be classified as a loan rather than a gift

A taxpayer inquired whether her ex-husband's inclusion in a mortgage loan for a property purchase implies that he is gifting his portion of the funds. The Directorate General of Taxes (DGT) indicated that if she repays all instalments, his contribution could be interpreted as a loan instead of a gift.

The question raised

Whether it can be understood that the ex-husband is going to donate to the taxpayer half of the money obtained from the mortgage loan used for the acquisition of the property.

The DGT's ruling

For a donation to exist, there must be an intention of liberality (animus donandi), impoverishment of the donor, and enrichment of the donee. If the taxpayer returns the entirety of the monthly payments, the operation could be classified as a loan from the ex-husband to her. These circumstances must be sufficiently proven before the Tax Administration.

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