Imputation of real estate income for housing following a divorce without judicial attribution

The tax management of real estate following a relationship breakdown raises frequent questions, especially regarding the obligation to impute real estate income in Personal Income Tax (IRPF). A recent binding ruling from the Dirección General de Tributos (DGT) has delimited the scope of this obligation when the property remains under co-ownership.

What the DGT has resolved

The main issue was to determine whether a property owner must impute real estate income for their share of the property, even when the use of the same is exercised by their ex-partner or their children. The DGT has established that:

• If there is an attribution of the right of use: The imputation of real estate income for the family home is not applicable, in accordance with Article 96 of the Civil Code, regardless of whether the home is not the habitual residence of the other parent.
• If there is no judicial attribution: In the event that no judicial decision has been issued attributing the right of use and the ex-spouse resides in the property, the owner must impute the real estate income corresponding to their share.

What it means for you

This criterion directly impacts individuals who maintain co-ownership of a property after a divorce. The tax key lies not only in who inhabits the home, but in the existence of a legal title that regulates that use. If the occupation by an ex-spouse or children occurs without a ruling formally attributing the right of use, the Administration considers that the owner who does not reside there is receiving an indirect economic benefit, which generates the obligation to pay tax.

What you should do

In this situation, it is necessary to analyze the legal status of the property. The existence of a judicial resolution regulating the use of the home is the determining factor to avoid the imputation of income. It is essential to assess the particular situation of each co-owner and the documentation supporting the use of the property to ensure compliance with IRPF regulations and the Civil Code.