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V3445-16 20 July 2016 · SG de Impuestos sobre la Renta de las Personas Físicas Criterion in force
IRPF · ganancia patrimonial

Allocation of assets exceeding ownership share triggers taxable capital gain

The taxpayer asks whether allocating a property to his ex-wife during the liquidation of the community property regime, via compensation, constitutes an asset alteration and if the exemption for reinvestment in a primary residence could apply. The DGT rules that allocating assets at a value higher than the ownership share does constitute an asset alteration and that, in this instance, the reinvestment exemption cannot be applied.

The question raised

Existence of an asset alteration and, where applicable, the application of the exemption if, within two years following the date of the execution of the public deed of liquidation of the community property and allocation of the dwelling, a new dwelling is acquired that would constitute the taxpayer's habitual residence.

The DGT's ruling

The dissolution of the community property regime does not constitute an asset alteration provided that the allocation conforms to the ownership share. If assets are allocated at a value exceeding said share, an asset alteration occurs, resulting in a capital gain or loss for the other spouse. To apply the reinvestment exemption, the transferred property must have been the taxpayer's habitual residence, which requires continuous residence for three years or exceptional circumstances justifying the change of domicile.

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