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V2561-23 26 September 2023 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · exención por reinversión

Exemption for reinvestment in main residence may be claimed after divorce if requirements are met

A taxpayer inquired whether they could apply for the reinvestment exemption for a main residence after selling the family home following a divorce years ago. The Directorate General of Taxes (DGT) indicates that, according to Supreme Court case law, the property remains a main residence if the former spouse continued to live in it, thereby allowing for the exemption and the potential rectification of the tax return.

The question raised

Whether there is a right to the exemption for reinvestment in the habitual residence, and therefore, whether a rectification of the tax return may be filed.

The DGT's ruling

For the purposes of the reinvestment exemption, in divorce cases that cause the cessation of residence of one spouse, it shall be understood that the habitual residence is transferred if it constituted the habitual residence of the other spouse at that time or during the two preceding years. As this is an interpretation by the Supreme Court that benefits the taxpayer, the taxpayer may request a rectification of their tax return if they consider that the one filed prejudices their legitimate interests, provided that the legal requirements are met and it is within the statute of limitations.

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