Sale of primary residence by those over 65: census registration is not decisive

The Directorate General of Taxes (DGT) has issued a relevant ruling for taxpayers over 65 years of age who wish to apply the Personal Income Tax (IRPF) exemption for the transfer of their primary residence. The central issue lies in whether census registration (empadronamiento) is the only valid element to demonstrate that a property has been the taxpayer's residence.

What the DGT has ruled

The query sought to determine whether it was possible to benefit from the exemption provided in Article 33.4.b) of the IRPF Law even if the taxpayer was not registered on the census at the property being sold. The DGT has ruled that census registration does not, by itself, constitute a sufficient element to certify the status of a primary residence.

The ruling establishes that the exemption is applicable if the transferred property is the primary residence at the time of the sale or was so in the two years prior to the transfer. However, residence is a matter of fact. This implies that the taxpayer must be able to demonstrate their effective residence through any means of proof admitted in Law, regardless of what appears in the census registry.

What this means for you

If you are over 65 and are going to sell your home, you cannot take for granted that the census certificate is the only proof that the Tax Agency (Hacienda) will accept. If, due to various circumstances, you were not registered on the census at the property you are selling, but it has been your primary residence at the time of the transaction or in the two previous years, you could maintain the right to the capital gains exemption.

This ruling underlines that the material reality of residence prevails over the administrative data of the census, but it shifts the burden of proof to the taxpayer to demonstrate that they actually lived in that property.

What you should do

In an operation of this type, it is fundamental to have documentation that supports effective residence in the property. This may include:

• Utility bills (electricity, water, gas) in the taxpayer's name.
• Service contracts linked to the property.
• Medical certificates or from other services that certify the location of the residence.
• Any other document that demonstrates the use of the property as a primary home.

Each situation is unique, so it is necessary to assess the available documentation to ensure compliance with the requirements of current regulations.