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V3000-18 21 November 2018 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · donación

The reduction for donation of real estate is not applicable if the donor does not carry out an economic activity

A married couple wishes to donate elements of an economic activity to their children; one donates intangible assets and the other donates the vessels where the activity is carried out. The DGT responds that the owner of the vessels cannot apply the reduction for Inheritance Tax nor the neutrality of capital gains in the Personal Income Tax (IRPF) due to not being an entrepreneur.

The question raised

Question posed: Whether the donees and the donors could benefit from the tax benefits provided for in article 20.6 of the Inheritance and Gift Tax Law and in article 33.3.c) of the Personal Income Tax Law, respectively.

The DGT's ruling

For the reduction in Inheritance Tax, the donor must be entitled to the exemption in Wealth Tax, which requires carrying out the activity in a habitual, personal, and direct manner. The spouse who donates real estate without economic activity does not meet this requirement. In the IRPF, the donor of the activity may estimate the non-existence of capital gains or losses on fixed assets if they meet the requirements of article 20.6 of the Inheritance and Gift Tax Law.

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