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V2856-20 22 September 2020 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · ganancia patrimonial

Property allocation following divorce is not subject to IIVTNU or ITPAJD, but may trigger IRPF

A taxpayer inquired whether the allocation of a property following the dissolution of co-ownership due to divorce is subject to ITPAJD, IIVTNU, and IRPF. The DGT determined that there is no liability for IIVTNU or ITPAJD (due to inadmissibility), but a capital gain or loss may arise for IRPF purposes for the spouse transferring their share.

The question raised

1.) Whether the dissolution of the co-ownership is subject to the Transfer Tax and Stamp Duty (ITP/AJD) and the Tax on the Increase in Value of Urban Land (IIVTNU).

The DGT's ruling

The adjudication of full ownership following the enforcement of a divorce decree is not subject to the IIVTNU. Under Personal Income Tax (IRPF), the division of common property does not constitute an asset alteration if the corresponding share is adjudicated; however, if an asset is adjudicated at a value exceeding the share, a capital gain or loss is generated for the other co-owner. Regarding the deduction for investment in the primary residence, it cannot be applied to the portion acquired after 2012, but it may be maintained for the portion held prior to that date if the requirements were met.

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