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A taxpayer married under the community property regime wishes to contribute their primary residence (built on private land) to the community property. The DGT analyzes whether this operation generates a capital gain subject to taxation or if it may qualify for the age-based exemption.
Question posed: Tax treatment of the aforementioned contribution and, as the inquirer is over 65 years of age, the application of the exemption provided for in Article 33.4.b of the Tax Law.
The contribution of the residence to the community property is considered a barter that generates a capital gain or loss for the spouses. If the taxpayer is over 65 years of age and the residence meets the requirements of a primary residence, the capital gain generated by the contribution shall be exempt. Effective residence is a question of fact that must be proven by the taxpayer.
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