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V2318-19 9 September 2019 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ISD · sociedad ganancial

Allocation of community property and waiver of usufruct are subject to Inheritance and Gift Tax

A query was raised regarding the taxation of the allocation of community property assets to children and the widow's waiver of her life usufruct. The DGT indicates that the allocation of community property constitutes a gift, and the waiver of a previously accepted usufruct is also considered a gift.

The question raised

1. Taxation of the adjudication made by the spouse of the deceased to the children of the deceased regarding the undivided half-share of assets acquired through the liquidation of the community property regime.

The DGT's ruling

The adjudication of an undivided half-share of assets from the community property regime to the children constitutes a gratuitous 'inter vivos' transfer subject to Inheritance and Gift Tax. The spouse's renunciation of a previously accepted life usufruct is considered a donation from the usufructuary to the bare owner. Upon the consolidation of ownership due to a cause other than death or the prescribed term, the acquirers shall be taxed based on the higher of the two settlements: that pending from the dismemberment of ownership and that from the lucrative transfer.

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