Mortis causa donations with present transmission will not be taxed as capital gains

The legal nature of mortis causa donations with present transmission has raised doubts regarding their tax treatment for Personal Income Tax (IRPF). A recent resolution from the General Directorate of Taxes (DGT) clarifies the scenario for taxpayers performing this type of act.

What the DGT has resolved

The advisory body has determined that a mortis causa donation with present transmission must be classified as a lucrative transfer due to the taxpayer's death. By falling into this category, the operation is subject to the tax exclusion provided for in Article 33.3.b) of Law 35/2006 on IRPF.

Consequently, the administration establishes that no capital gains or losses will be estimated in these operations. This implies that the donor will not have to declare an increase in their taxable base due to the delivery of assets under this specific modality.

What this means for you

For individuals performing this type of donation, the resolution provides legal certainty regarding the tax burden involved in the act. Since it is not considered an onerous transfer, taxation on the difference between the acquisition value and the transfer value is avoided for IRPF.

This treatment is particularly relevant in contexts where civil regulations, such as the Civil Code of Catalonia, allow this type of provision with immediate effects but linked to death. The key lies in the fact that the transfer is understood as a lucrative act derived from death, which shifts the taxation toward Inheritance and Gift Tax and relieves IRPF from the obligation to tax the capital gain.

What should be done

Given that the classification of the operation depends on its legal structure and the applicable civil regulations, it is necessary to verify that the donation strictly complies with the requirements to be considered mortis causa with present transmission. Every wealth and succession situation is different, so the adequacy of these instruments to the pursued tax and planning objectives must be assessed.