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The consultant asks whether the non-payment of a loan to a company in bankruptcy allows a deduction of a patrimonial loss in income tax. The DGT responds that non-payment does not automatically generate a patrimonial loss, as the right to credit continues until it is judicially unenforceable or specific conditions are met.
Question posed: Personal Income Tax treatment of the non-payment of a loan granted to a company that subsequently entered insolvency proceedings, which concluded due to insufficient assets, where a partner and administrator of the company is a relative of the lender up to the second degree.
The non-payment by a debtor does not automatically generate a capital loss due to the existence of a credit right. For it to be deductible, the credit must be judicially uncollectible or meet the conditions for temporal imputation under Article 14.2 letter k) of the Personal Income Tax Law. These conditions include the effectiveness of a debt waiver in a refinancing agreement, the conclusion of insolvency proceedings without satisfaction of the credit (subject to exceptions), or the passage of one year in unsuccessful enforcement proceedings.
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