Impossibility of deducting capital loss for payments made on behalf of a third party
The Directorate General of Taxes (DGT) has issued a relevant ruling regarding the possibility of counting as a capital loss in Personal Income Tax (IRPF) those amounts disbursed to cover the obligations of a third party, specifically in contexts related to a person's freedom.
What the DGT has resolved
After analyzing the inquiry, the DGT has determined that it is not possible to analyze the existence of a capital loss in the IRPF of the inquiring person for the payments made. The body points out that, given the imprecision of the facts, the situation is redirected to payments that could have the nature of bail or the civil liability of the convicted person.
The key point of the resolution lies in the ownership of the obligation. Since the payment obligation is the responsibility of the partner and not of the inquirer, the administration excludes any analysis regarding the existence of a capital loss for the person making the disbursement. In tax terms, for a deductible capital loss to exist, there must be a decrease in the taxpayer's assets derived from a transfer or an obligation of their own that is extinguished.
What this means for you
This criterion directly affects individuals who make payments intended to cover debts, bail, or civil liabilities of family members, partners, or third parties with the aim of attempting to deduct said expense as a capital loss in their tax return. Current regulations, based on Law 35/2006 and Law 58/2003, require that the loss be that of the taxpayer to be considered in the calculation of the taxable base.
What you should do
It is fundamental to distinguish between a personal expense or a donation and a deductible capital loss. If payments are made to cover the obligations of third parties, these will not have tax effects of reducing the taxable base in the IRPF. In situations of this type, it is necessary to assess the legal nature of each disbursement and its impact on personal assets to avoid errors in the tax settlement.
Frequently asked questions
- Can I deduct as a capital loss a payment made for my partner's bail?
- No, because the obligation belongs to the partner and not to the taxpayer making the payment.
- What requirement is essential for a capital loss to exist in the IRPF?
- That the decrease in assets must be a responsibility of the taxpayer themselves.