Taxation of the deed of notoriety in the ITPAJD

The Directorate General of Taxes (DGT) has issued a relevant criterion regarding the tax nature of the deed of notoriety within the scope of the Transfer Tax and Documented Legal Acts Tax (ITPAJD). This resolution addresses the situation of taxpayers who use this instrument to register real estate properties.

What the DGT has resolved

The inquiry asks whether the ownership file or deed of notoriety should be subject to the ITPAJD. The criterion establishes that the deed of notoriety is not subject to the tax in onerous transfers as long as the promoter can prove they have satisfied the tax or the exemption for the transfer whose title is being supplanted.

However, if such payment or the corresponding exemption is not proven, the deed of notoriety becomes subject to the tax under the modality of onerous property transfers. In this sense, the DGT relies on the doctrine of the Supreme Court, which determines that the title being supplanted is the acquisition of the property by the taxpayer and not previous transfers.

What it means for you

This criterion has a direct impact on individuals who use deeds of notoriety for the registration of assets. If you use this mechanism to regularize the ownership of a property without having previously settled the tax derived from its acquisition, you face the risk of the administration demanding payment of the ITPAJD on the current transfer.

The key lies in the ability to demonstrate that the transfer which the deed of notoriety intends to supplant has already fulfilled its tax obligations or has benefited from a legal exemption.

What you should do

When using a deed of notoriety for the registration of assets, it is fundamental to have the documentation that certifies compliance with the tax obligations of the preceding transfer. The absence of this proof can lead to a tax assessment under the modality of onerous transfers. It is recommended to assess each particular situation and verify the fiscal traceability of the property acquisition before proceeding with this type of procedure.