Personal Income Tax exemption for the sale of a primary residence by those over 65

The Dirección General de Tributos (DGT) has clarified the scope of the tax exemption applicable to individuals over 65 years of age when they transfer their primary residence. This criterion is fundamental in determining the tax burden derived from the sale of real estate for this group.

What the DGT has ruled

The inquiry focuses on the applicability of the exemption provided for in Article 33.4.b) of the Personal Income Tax Law (LIRPF). The criterion establishes that capital gains derived from the transfer of a primary residence are exempt for taxpayers aged 65 or older.

For this exemption to be valid, the building must have held the status of primary residence at the time of the transfer or on any day during the two years immediately preceding it. Likewise, the DGT emphasizes that proving such residency is a matter of fact that falls upon the taxpayer, who must provide the necessary evidence to demonstrate that the property served that purpose.

What it means for you

If you are over 65 and decide to sell your main residence, the gain obtained from the operation may not be taxed in your IRPF return. However, this benefit is not automatic and depends strictly on the nature of the property and its previous use.

It is relevant to consider that:

• The status of primary residence must be verifiable within the two-year period prior to the sale.
• The burden of proof regarding effective residence lies with the taxpayer in the event of an inspection.
• The exemption applies to both the taxpayer and their spouse if they meet the legal requirements.

What you should do

In an operation of this type, it is necessary to gather documentation proving that the home has been your primary residence, complying with the deadlines established by the regulations. The correct declaration of these exempt gains in the IRPF form is essential to avoid discrepancies with the Tax Administration. Since the proof of residency is a factual element, each situation must be carefully analyzed to ensure compliance with Law 35/2006 and RD 439/2007.