Parents with custody cannot apply the child support annuities regime

The application of tax benefits derived from child maintenance expenses has raised doubts regarding the coexistence of different regimes within Personal Income Tax (IRPF). A recent binding ruling from the Dirección General de Tributos (DGT) clarifies the impossibility of combining the right to the minimum for descendants with the special treatment of child support annuities.

What the DGT has resolved

The advisory body has determined that there is an incompatibility between the minimum for descendants and the child support annuities regime provided for in Articles 64 and 75 of the IRPF Law. According to the established criteria, the parent who holds custody of the children, whether exclusively or jointly, is entitled to apply the minimum for descendants (which shall be prorated in cases of shared custody).

The resolution establishes that the special regime of child support annuities is only applicable when the parent making the payments is not entitled to the application of the minimum for descendants. Therefore, if the taxpayer can claim the minimum for descendants, they are excluded from the possibility of applying the tax treatment of annuities for amounts paid as child support or judicially determined school and training expenses.

What this means for you

If you are a divorced or separated parent with children and you exercise custody, the regulations assign you a specific tax treatment based on your right to the minimum for descendants. This implies that:

• You will not be able to opt for the child support annuities regime to deduct maintenance, education, or training expenses for your children.
• In the case of shared custody, the tax benefit will be applied through the proration of the minimum for descendants between both parents.
• The annuities regime is reserved solely for those cases where the payer is not entitled to the minimum for descendants.

What you should do

Given the binding nature of this criterion, taxpayers must ensure that their tax return correctly reflects their custody situation. It is necessary to evaluate whether applying the minimum for descendants is more beneficial than other treatments, although current regulations limit the ability to choose in these custody scenarios. It is recommended to analyze the family situation and the expenses derived from the judicial sentence to ensure compliance with current regulations.