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V2567-17 10 October 2017 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · condición resolutoria

Rescission of a sale due to non-payment generates a capital gain as general income in the year of the judgment

A taxpayer inquired about the tax implications of the judicial rescission of a property sale where a penalty clause for non-payment was applied. The DGT ruled that rescission reverts the situation to its original state, treating the compensation received as a capital gain.

The question raised

Impact of the contractual resolution on the taxation of the taxpayer's Personal Income Tax (IRPF), considering that the capital gain corresponding to the sale was declared in 2013.

The DGT's ruling

The resolution of the contract with retroactive effect eliminates the initial transfer and generates a new change in assets due to the compensation for the penalty clause. This gain must be attributed to the tax period in which the judgment becomes final. As it does not derive from a transfer, it is quantified by the market value of the elements and is integrated as general income into the tax base. To exclude the gain from the original sale, the rectification of the tax returns must be requested.

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