Sale of primary residence for those over 65: the importance of effective residence

The application of the exemption in Personal Income Tax (IRPF) for the transfer of a primary residence for individuals over 65 is a highly relevant tax benefit. However, the Dirección General de Tributos (DGT) has specified the requirements necessary for this right to be effective, emphasizing that mere registration in the municipal register (padrón) does not guarantee compliance with the regulations.

What the DGT has ruled

The inquiry focuses on the interpretation of article 33.4.b) of the IRPF Law. The DGT determines that, for a home to be considered a primary residence and allow for the exemption, it must have been the taxpayer's residence for at least three continuous years, or have been so in the two years prior to the transfer.

The key point of the ruling is that the status of a primary residence is a matter of fact. This implies that the taxpayer bears the burden of proving effective residence through any means admitted by law. The administration warns that the certificate of municipal registration is an indication, but does not constitute sufficient proof on its own to certify actual residence in the property.

What this means for you

If you are over 65 and plan to sell your home to benefit from the tax exemption, you cannot take for granted that the certificate of municipal registration will be sufficient in the event of a tax inspection. The regulations require that residence be real and effective during the time periods stipulated by the IRPF Law and the RIRPF.

This criterion directly affects the legal certainty of the transaction. If the Tax Agency questions the habitual nature of the residence, the taxpayer must provide other elements demonstrating that they actually lived in the property, thereby avoiding claims for the tax that was intended to be exempt.

What should be done

In the event of a potential transfer, it is necessary to gather documentation that supports effective residence in the home during the required years. This may include utility bills, service contracts, or any other document certifying the actual occupation of the property. It is fundamental to assess the particular situation of each taxpayer to ensure compliance with the requirements of Law 35/2006 and the General Tax Law.