B Law & Tax
07 December 2023

Tax advisor: The loss suffered in a telephone fraud is considered a capital loss according to the Personal Income Tax (IRPF)

Through the binding consultation of September 27, 2023, the General Directorate of Taxes indicates that amounts lost due to a properly documented a telephone fraud  can be considered as a capital loss in the Personal Income Tax (IRPF).

In the presented scenario, a taxpayer fell victim to a telephone fraud in which someone impersonated her daughter, requesting transfers for fictitious purchases, a fact that was reported.

The General Directorate of Taxes relies on the concept of capital gain and loss mentioned in Article 33.1 of the IRPF Law. According to this, changes in the value of what you own when something in your financial situation changes are considered, unless the law deems it income. However, there are exceptions, such as losses without justification, losses due to consumption, generous transactions, and games where losses exceed gains in the same period.

The consultation determines that “the amount of money affected by the deception or scam suffered by the taxpayer will represent a capital loss.”

However, for this loss to impact the IRPF, it must be properly justified. The justification of the loss is governed by Article 106.1 of the General Tax Law (LGT), which establishes that the rules of the Civil Code and the Spanish Civil Procedure Law (LEC) on means and valuation of evidence will apply, and tax authorities will assess the sufficiency of the evidence presented.

It is clarified that, as it does not involve the loss of a transmission of patrimonial elements, it will be considered as general income and will be integrated into the general taxable base, in accordance with Articles 45 and 48 of the IRPF Law.

In summary, the General Directorate of Taxes maintains that amounts lost due to a documented scam can be considered as a capital loss in the IRPF. The case involves a taxpayer defrauded by telephone, but for this loss to impact the IRPF, it must be properly justified. The consultation highlights that, as it is not the loss from the transmission of patrimonial elements, it will be integrated into the general income according to Articles 45 and 48 of the IRPF Law.

 

 

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