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V3113-20 19 October 2020 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · permuta

Asset allocation by third parties via private document may be deemed a barter subject to ITP

A taxpayer inquired whether a private document allocating assets among heirs has the effect of a partition. The DGT indicates that if the allocation is deemed to have already occurred, any subsequent exchange of assets between heirs constitutes a barter subject to Transfer Tax (ITP).

The question raised

Whether the adjudication clause by third parties contained in the private document produces legal effects and whether the partition must be deemed to have been carried out.

The DGT's ruling

If the Administration considers that the private document has already effected the acceptance and adjudication of the inheritance, the exchange of assets between the heirs shall be a legal transaction distinct from the partition, specifically a barter. This barter shall be subject to the onerous transfer of assets modality of the ITP. If the Administration understands that there was no prior partition, the deed of adjudication shall not be taxed for onerous transfers or for documented legal acts, as it has already been taxed under the Inheritance and Gift Tax.

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