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A taxpayer victim of online financial fraud (€114,500) asks if a patrimonial loss can be claimed. The DGT states that payments do not automatically generate a loss, as a credit right exists against the debtor. A loss can only be claimed if one of the conditions in article 14.2.k) of the LIRPF is met: insolvency, concursal agreement, or one year having passed since the start of a judicial enforcement procedure, excluding mere criminal complaint.
Question raised: Possibility of computing a capital loss in the IRPF.
The filing of a complaint or criminal charge for fraud does not equate to the judicial procedure intended for the enforcement of the credit required by Article 14.2.k).3 of the LIRPF to impute the capital loss. If the perpetrator is ultimately not identified and no credit right can be recognized, the amount of the fraud would constitute a capital loss (Art. 33.1 LIRPF), but it must be duly justified in accordance with Article 33.5.a) of the same law. As it does not derive from the transfer of assets, the loss would be integrated into the general taxable base (Arts. 45 and 48 LIRPF).
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