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V2430-20 15 July 2020 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · régimen económico matrimonial

Contribution of separate property to a community property regime generates capital gains or losses

A married couple changes their matrimonial property regime from separation of assets to community property by contributing separate real estate. The DGT rules that this contribution constitutes a change in assets that generates capital gains or losses for Personal Income Tax (IRPF) purposes.

The question raised

Whether a capital gain or loss exists in the Personal Income Tax (IRPF) of both spouses as a consequence of the aforementioned contribution.

The DGT's ruling

The contribution of a separate asset to the community property regime generates a capital gain or loss pursuant to Article 33.1 of the Personal Income Tax Law (LIRPF). As the community property regime is not a taxpayer, the taxpayers are the spouses. A transfer only occurs regarding the half corresponding to the other spouse, calculating the difference between the acquisition value and the transfer value of that portion. If the quantification results in a loss through a gratuitous transfer, it shall not be accounted for.

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