Capital gains and losses are the variations in the value of the taxpayer’s patrimony that are revealed on the occasion of any alteration in the composition of the former, unless they are classified as income. Alterations in the composition of assets must be included, such as transmissions, prizes and justified losses, as long as they do not come from gambling.
succession agreements
In this exercise, as a novelty, it must be taken into account that article 3 of Law 11/2021, of July 9, has introduced since July 11, 2021, that in the case of lucrative acquisitions due to death (inheritances ) derived from succession contracts or agreements with effect in the present, the beneficiary who transfers the acquired assets, before five years from the conclusion of the agreement or the death of the deceased, if it is earlier, is subrogated in the position of the latter, on the value and date of acquisition of those, if it turns out that this value is lower than the result of the Inheritance and Gift Tax (ISD).
This modification is complemented by a transitional regime that establishes that it will only be applicable to transfers of assets made after July 11, 2021 that have been acquired for profit due to death by virtue of contracts or succession agreements with effects of present.
This new subrogation rule is not applicable to transfers made before July 11, 2021. In these cases, the acquisition value to be taken into account will be the result of the ISD rules when the transfer was made, and this value of acquisition is taken as the real amount for which its acquisition has occurred.
Reinvestment assumptions
The other great novelty in this chapter refers to profits excluded from tax in cases of reinvestment.
For the purposes of calculating the reinvestment period in the exemptions for reinvestment in habitual residence and in newly or recently created entities, the period between March 14, 2020, the date of entry into force of the Royal Decree 463/2020, and on May 30, 2020, by virtue of the provisions of the ninth additional provision of Royal Decree-Law 11/2020, of March 31, which adopts complementary urgent measures in the social field and economic to deal with Covid-19 and the modification of the temporary references provided for in the first additional provision of Royal Decree-Law 15/2020, of April 21, on complementary urgent measures to support the economy and employment.
Absence of alteration
There is no alteration in the composition of the patrimony in the division of the common thing; dissolution of the community of property or in the extinction of the matrimonial economic regime of participation; as well as in the dissolution of communities of property or in the separation of community members.
There is also no capital gain or loss in capital reductions; on the occasion of lucrative transmissions due to the death of the taxpayer; and on the occasion of lucrative transfers of companies or shares.
In these cases, the donee is subrogated to the position of the donor regarding values and dates of acquisition of the assets.
The patrimonial elements that are affected to the economic activity after its acquisition must have been affected without pause during, at least, the five years prior to the transfer.
In the extinction of the matrimonial economic regime of separation of assets, when due to legal imposition or judicial resolution awards are made for reasons other than the compensatory pension between spouses, it cannot give rise to updating the values of the assets or rights awarded.
Unjustified equity gains are considered to be the possession, declaration or acquisition of assets or rights located abroad for which the information obligation of the Eighteenth Additional Provision of the General Tax Law has not been fulfilled.
public aid
Residually, public aid is classified as a capital gain if there is a patrimonial element, affected or not to an economic activity -investment- to which the receipt of the aid is linked, as long as it is not classified as income.
In this situation it is necessary to consider the case of the housing repair subsidy; aid for acquisition and rehabilitation; the slaughter of breeding pigs -tangible assets- or the premiums for grubbing up vineyards.
Costs ordered
For the person sentenced to pay, it implies an alteration in the composition of his assets, producing a change in value. This variation or loss, given the nature beyond the control of the consultant, cannot be considered as an application of income for the taxpayer’s consumption, so it must be treated as a patrimonial loss that does not come from the transfer of patrimonial elements, being computed in the General Tax Base.
private goods
Contributions of private property to the joint venture are defined as onerous in the cases in which they give rise to any type of consideration, both simultaneously with the contribution, and through the birth in favor of the contributing spouse of a credit right against the joint property partnership enforceable at the time of the dissolution of said partnership.
The capital gain or loss will be given by the difference between the acquisition and transfer values of 50% of the contributed asset.
The actual amount of the sale value will be taken as the amount actually paid, that is, the amount set in the contribution deed, unless it is lower than the market value, in which case the market value will prevail.
Over-allotment
In general, the exercise of the action of division of the common thing (Civil Code, article 400), does not imply an alteration in the composition of the patrimony, since it only specifies the undivided participation that corresponded to each one of the co-owners, and for the purposes of future transfers, the date of acquisition is not the date of the adjudication of the assets to the community members, but rather the original date of their acquisition, without prejudice to the specialties provided for in the Tax regulations in relation to the affected assets.
The adjudications must be carried out corresponding to the ownership fee, otherwise, when an excess of adjudication occurs, a capital gain is produced. In the same way, a capital gain will be produced if, when dividing a property in common, it is agreed to award it to one of the parties, compensating the other in cash or in kind.
Refund of contributions
The perception of the insurance company of the same amount as the deliveries made at the time to the cooperative given the identity of both amounts: the insurance compensation and the credit right for deliveries on account to the cooperative does not give rise to capital gain.
Regarding the interest received, due to its compensatory nature, they are taxed as capital gains.
As this capital gain does not come from a transmission, its quantification will correspond to the amount of interest received.
These interests will proceed to integrate them -whatever the period they cover- in the tax base of savings.
Capital gains, as a general rule, are allocated to the tax period in which the capital alteration takes place.
Thus, the patrimonial alteration corresponding to the interests subject to consultation can only be understood as produced when they are recognized, that is, when they are quantified and their payment is agreed.
Home developer loan
The installments of the mortgage loan paid by the promoter by reducing the debt of the taxpayer, who appears as the sole borrower of the latter, constitute for the latter a capital gain subject to personal income tax, which must be integrated as general income.
The amounts paid by the developer, once they have entered the taxpayer’s assets as they are considered a capital gain by the latter, will be considered as amounts paid for the purchase of a home, giving the right to apply the deduction for investment in habitual residence provided that meet the legal requirements.
Dation of housing in payment
The return by the financial entity of some expenses paid for the formalization of the mortgage loan by virtue of the annulment by court ruling of the clauses that establish that said expenses must be borne by the borrower does not imply performance or profit for the taxpayer, considering that their payment It was only an application of income provided that said expenses have not been subject to deduction from real estate capital income or income from economic activities.
The taxpayer does not include in his statement the amounts received for this concept. Regarding the tax period in which they were paid, these expenses are considered satisfied when constituting the loan.
In the event that the repaid amounts have been part of the deduction for investment in habitual residence, the taxpayer must regularize them, provided that they correspond to a non-prescribed year.
Expropriation of housing
The transfer derived from a forced expropriation gives rise to a capital gain or loss, when there is a variation in the value of the taxpayer’s patrimony that is revealed by an alteration in its composition.
The amount of this capital gain or loss, as established by the Tax regulations, will be calculated by the difference between the values of the acquisition and transfer in accordance with the provisions of articles 34 and following of the Personal Income Tax Law.
The transfer value will be constituted by the amount of the fair price. In this way, the patrimonial alteration before the forced expropriation occurs in the period in which the fair price is set and paid and the expropriated property is occupied.
Over 65 years
The capital gain caused by the transfer of the habitual residence by people over 65 years of age at the time of the transfer is exempt if the transferred residence is the habitual one.
In these cases, it is considered habitual when said building constitutes your habitual residence at that moment or has had such consideration until any day of the two years prior to the date of transmission.
Bankruptcy proceedings
The income obtained by the debtors that is revealed in bankruptcy proceedings for removals and dations in payment of debts established in the judicially approved agreement are exempt; judicially approved refinancing agreement; or out-of-court payment agreement.
Exemptions for unsatisfied liabilities are also exempt. Always, it is a necessary requirement for the income to be declared exempt that the debts do not derive from the exercise of economic activities.
In addition, in the case of debts derived from the exercise of economic activities, its regime is…
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