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V3159-20 22 October 2020 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · disolución de sociedad de gananciales

Excess allocation in the dissolution of community property is subject to ITP if avoidable through alternative distribution

A taxpayer inquired whether the dissolution of their community property regime and the resulting excess allocation (receiving more assets than their legal share) are subject to ITP and AJD tax. The DGT ruled that while the dissolution itself is exempt, any onerous excess allocation must be taxed if the distribution could have been structured differently to avoid it.

The question raised

Taxation under Transfer Tax and Stamp Duty.

The DGT's ruling

The dissolution of the community property regime does not constitute a transfer of assets; therefore, the deed is exempt from Transfer Tax (ITP) but subject to Stamp Duty (AJD). However, the excess adjudication received by a spouse through economic compensation is onerous in nature and must be taxed under Transfer Tax. This taxation applies if the excess is avoidable, i.e., if the pool of assets allowed for a distribution in equivalent lots that would not have generated such an excess.

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