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V2315-24 8 November 2024 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · ganancia patrimonial

Exemption on sale of main residence for over-65s applicable even if no longer residing there following divorce

A taxpayer has enquired whether the exemption for the transfer of a main residence for those aged over 65 can be applied if they ceased to reside in the property following a divorce. The DGT clarifies that, in accordance with Supreme Court case law, the property is considered a main residence if the former spouse remaining in the property maintains it as such.

The question raised

Possibility of applying the exemption for the transfer of the habitual residence for persons over 65 years of age and the taxation of the operation in the event of transferring the residence before reaching the age of 65.

The DGT's ruling

In cases of separation or divorce that force a spouse to leave the domicile, it shall be understood that they transfer the habitual residence if this constitutes the habitual residence of the spouse who remained in it at the time of the transfer or in the two preceding years. Therefore, if the taxpayer is over 65 years of age and these requirements are met, they may apply the exemption under article 33.4.b) of the LIRPF. If they transfer while under 65 years of age, they may not benefit from said exemption and the gain shall be taxed in the savings tax base.

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