Mortis causa donations with immediate transfer do not generate capital gains or losses

The legal nature of donations with present effects and succession pacts has raised doubts regarding their tax treatment in Personal Income Tax (IRPF). Recently, the Dirección General de Tributos (DGT) has clarified the classification of these operations to avoid double taxation or an erroneous interpretation of the tax base.

What the DGT has resolved

The binding ruling establishes that a mortis causa donation, when it involves the immediate transfer of ownership, constitutes a succession title. Therefore, its treatment in Inheritance and Gift Tax (ISD) must be that of a mortis causa transfer.

Regarding IRPF, the DGT determines that these lucrative transfers are covered by article 33.3.b) of the IRPF Law. This implies that, as it is a transfer due to death or under succession titles, no capital gain or loss is generated for the transferor.

This criterion is not limited solely to mortis causa donations, but also extends to succession pacts with present effects provided for in various regional laws, such as the Civil Code of Catalonia.

What this means for you

For individuals performing these types of acts, the main consequence is legal certainty regarding the impact on their income tax return. Since it is not considered an onerous transfer, the donor will not have to declare a capital gain due to the increase in the value of the transferred asset.

This prevents the operation from being treated as a disguised sale, which could lead to an unforeseen tax burden in IRPF. The tax focus shifts exclusively to Inheritance and Gift Tax (ISD), in accordance with the applicable regulations based on the succession title.

What you should do

Since the classification of the operation depends on the nature of the title (whether it is a pure donation, a mortis causa donation, or a regional succession pact), it is necessary to analyze the documentation supporting the transfer. The correct structuring of the act is fundamental to ensure that the lucrative transfers regime is applied rather than the ordinary capital gains regime. It is recommended to assess each particular case to confirm the applicable regional law and compliance with the requirements of the IRPF Law.