Real estate commission for a failed sale is not a capital loss

In the scope of Personal Income Tax (IRPF), doubts have arisen regarding whether expenses derived from a sale and purchase operation that is not finalized can be treated for tax purposes as a capital loss. The Dirección General de Tributos (DGT) has issued a ruling that delimits the nature of these payments.

What the DGT has ruled

The query analyzed whether the mediation commission paid to a real estate agency, due to the withdrawal from a purchase, could be counted as a capital loss not derived from asset transfers. The advisory body has ruled that it is not possible to apply this treatment.

According to the DGT's criteria, the payment of fees for mediation services in a sale and purchase that is not completed is configured as a consumption expense for the taxpayer. Since there is no transfer of assets that generates the loss, the expense does not fit the technical definition required for its deduction under this concept.

What this means for you

This ruling directly affects individuals who, after having started a process to acquire a property, decide to withdraw from the operation and must pay the commission agreed upon with the real estate agency. For these taxpayers, the amount paid cannot be used to reduce the IRPF taxable base through the declaration of capital losses, in accordance with the provisions of Law 35/2006.

In practical terms, the expense is considered a personal consumption cost and not a loss derived from the management of assets, which prevents its inclusion in the savings taxable base.

What you should do

Since the nature of this expense is defined as a consumption expense, it is fundamental for taxpayers to understand the distinction between an asset management expense and a personal consumption expense. In situations involving failed real estate operations, it is necessary to evaluate the documentation of the mediation contracts and the reasons for the withdrawal to determine the tax treatment applicable to each particular case.