The dation in payment of the house to a third party, other than the bank creditor of the mortgage loan, is exempt from taxation in the Personal Income Tax (IRPF) and the Tax on the Increase in Value of Land of Urban Nature (IIVTNU) -popularly known as Plusvalía-.
Thus, it is recognized by the General Directorate of Taxes (DGT) of the Ministry of Finance, in response to a binding consultation, dated October 2, 2018, in which it concluded that the literal wording of the exemption allows such an interpretation to be sustained.
The DGT explains that the regulation does not strictly limit in favor of whom the dation must be made, but only requires three requirements: that it be from the habitual residence of the debtor or his guarantor; that it is carried out for the cancellation of debts guaranteed with a mortgage that falls on the habitual residence; and that these mortgage debts have been contracted with credit institutions or any other entity that, professionally, carries out the activity of granting mortgage loans or credits.
Therefore -says the DGT- it is not required that the transfer, in the case of dation, be in favor of the credit institution, so the possibility that the creditor admits or imposes, without altering the extinctive character, is not excluded. of the dation, the transmission to a third party designated at his will.
The DGT also points out that article 123 of Royal Decree-Law 8/2014, of July 4, approving urgent measures for growth, competitiveness and efficiency, effective as of January 1, 2014, establishes that transfers made by natural persons on the occasion of the dation in payment of the habitual residence of the mortgage debtor or guarantor of the same are exempt from the payment of the IIVTNU, for the cancellation of debts guaranteed by a mortgage that falls on it, contracted with entities of credit or any other entity that, professionally, carries out the activity of granting loans or mortgage credits.
Also, remember in this binding consultation, the DGT, that article 123 of the IIVTNU regulation establishes that transfers of housing in dation in payment, carried out in judicial or notarial foreclosures, will be exempt.
DGT argues that the application of the exemptions when the transmission is to a third party can be carried out, because in this case the dation in payment “is not distorted nor does its nature change due to the fact that it is done in favor of a third party, other than the mortgagee, provided that it is the latter that imposes such a condition to access the dation and accepts it as extinction of the obligation”.
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