Mortis causa donations with immediate transfer will not be taxed as capital gains

The legal nature of asset transfers occurring at the time of death has raised doubts regarding their tax treatment for Personal Income Tax (IRPF). Following a recent resolution from the Dirección General de Tributos (DGT), the scenario for those receiving assets under this title has been clarified.

What the DGT has resolved

The DGT has determined that a mortis causa donation, when the transfer of ownership is immediate, constitutes a succession title. Therefore, these types of operations must be taxed under Inheritance and Gift Tax (ISD) as a transfer due to death.

Regarding IRPF, the administration establishes that these lucrative transfers due to death are covered by Article 33.3.b) of Law 35/2006 (IRPF Law). This implies that, as it is a transfer due to death, no capital gain or loss is generated for the transferor or the acquirer under this tax.

This technical criterion also extends to succession pacts with present effects provided for in various regional (foral) regulations, ensuring consistency in the treatment of succession figures.

What this means for you

If you are a beneficiary of a mortis causa donation or a succession pact that takes effect immediately, the operational consequence is that you will not need to declare a capital gain or loss in your IRPF tax return for said operation. The tax impact will be concentrated in the Inheritance and Gift Tax (ISD), following the rules for mortis causa transfers.

This criterion provides legal certainty to individuals managing their assets through succession figures, avoiding double taxation or the erroneous application of capital gains rules that do not correspond to the nature of the transfer.

What should be done

In the event of an asset transfer under these modalities, it is necessary to correctly identify the legal title of the operation. It is fundamental to distinguish whether the transfer is carried out through a lifetime donation or if it falls within the framework of succession pacts or mortis causa donations.

Since the application of regulations may vary depending on the autonomous community and the applicable regional (foral) legislation, it is recommended to assess each particular situation to ensure that the ISD settlement and the IRPF declaration comply with this DGT criterion.