BackThe Directorate General of Taxes studies in the binding consultation V0027-23 of January 11 the taxation of an operation of dissolution of community of goods in which a property is awarded to one of the co-owners and a compensation is made to the remaining owner.
The DGT states that it does not matter if the payment is made in cash or in installments, the excess award is not taxed in the modality of onerous property transfers, so the transaction is subject to the modality of documented legal acts. This implies that its taxable base is established in relation to article 30 of the Law on Transfer Tax and Stamp Duty (LITPyAJD).
According to articles 1,062 of the Civil Code and 61 of the Regulation of the Tax on Property Transfers and Documented Legal Acts (RITPyAJD) it is established that:
“When a thing is indivisible or greatly detracts by its division, it may be awarded to one, as a condition of paying the excess in money to the others”.
For its part, Article 61 of the RITPyAJD establishes:
“The dissolution of communities of property that are taxed in their constitution, will be considered for the purposes of the tax as dissolution of companies, and the liquidation will be made for the amount of the assets, rights or portions awarded to each co-owner.”
The dissolution of communities of property that have not carried out business activities, provided that the awards are in due proportion to the shares of ownership, will only be taxed, if applicable, for documented legal acts”.
The mortgage remains unaltered and the community member who is awarded the property is responsible for the part of the mortgage quota. The Supreme Court reiterates that the division and adjudication of the shares does not imply a transfer of property, as long as it is in proportion to the share of the co-owner in the community, but rather a specification or specification of an already existing abstract right.
Finally, in relation to compensation in cash or in an alternative manner, it should be noted that:
“- The compensation in cash referred to in article 1.062 of the Civil Code, can be made not only in cash, but also by the assumption of the debt of a mortgage loan or the dation payment of a property owned by the condominium owner”.
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