Buyers under a call option cannot force the seller to waive the VAT exemption

The nature of a real estate acquisition determines the treatment of Value Added Tax (IVA). Within the framework of a call option that has been judicially validated, doubts arise as to whether the buyer can demand that the seller waive the tax exemption so that the transaction is taxed at the general rate.

What the DGT has resolved

The Dirección General de Tributos (DGT) has clarified that a buyer who acquires an asset through the exercise of a call option does not hold the status of an awardee in a forced execution procedure. As this is a contractual purchase, the special powers provided for in the sixth additional provision of the IVA Law do not apply.

The ruling establishes that:

• The waiver of the VAT exemption is a right that belongs unilaterally to the taxable person (the seller).
• The buyer does not have the legal power to force the selling entity to waive said exemption.
• The buyer is also not authorized to formulate the waiver on behalf and for the account of the seller, even if there is a judicial sentence validating the call option.

What it means for you

If you are an individual or a company acquiring real estate through a call option, you must understand that the tax structure of the transaction depends on the seller's will. If the seller decides to maintain the VAT exemption, the buyer cannot impose the change of tax regime through judicial or contractual means, unless there is a prior and express agreement in the original contract.

This scenario clearly differentiates sales derived from forced executions (where special rules exist) from contractual sales, where the autonomy of the taxable person's will regarding their exemption regime prevails.

What is advisable to do

In operations of this type, it is necessary to thoroughly review the call option contract before signing it. If the objective is for the transaction to be taxed under VAT instead of the exemption, this agreement must be clearly and previously established between the parties. It is recommended to assess the legal situation of each contract to avoid surprises in the final tax burden of the acquisition.