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A consulting company asks whether delivering real estate to settle a secured debt constitutes passive investor liability. The DGT explains that if the operation is subject and not exempt, passive investor liability applies, but also considers the possibility of waiving exemption.
Question raised: Application of the reverse charge rule.
If the transfer of real estate securing a loan is carried out to extinguish the debt (by way of dation in payment or assumption of the debt by the acquirer), the reverse charge mechanism applies pursuant to art. 84.One.2.e), third indent of Law 37/1992. However, if the transaction is an exempt supply and the taxable person waives said exemption, the acquirer shall be the taxable person by application of the second indent of the same article. The waiver of exemption takes precedence over the case of enforcement of a guarantee.
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