In a separation of assets in the case of an inheritance or a divorce, there is usually real estate involved that must be distributed among the heirs or owners. In addition to these already complicated cases, the Treasury has decided to charge the AJD tax twice from the person who keeps the house (the standard property in most cases), considering that two different operations occur. that must be paid: the termination of the condominium and the excess of allotment.
For heirs who are in the process of distributing assets or for those couples who are in the middle of a divorce separation, they must take into account that from now on they can be taxed twice for the Documented Legal Acts (AJD), when the distribution of real estate or those assets that are indivisible occurs, following a recent resolution of the General Directorate of Taxes.
The lawyers at Ático Jurídico clarify the situation in which this case occurs, why the Treasury now applies this criterion and what taxpayers who see themselves as beneficiaries of the property should do.
In most inheritances or in cases of separation, there is always one or more properties that have several owners. When the time comes to distribute these indivisible assets, discrepancies and problems often arise between the heirs and the couples who are separating. The normal thing is that there is always a beneficiary of the asset who will have to compensate the rest in cash. This is commonly known as condominium termination.
The other case is that you decide to sell the property and distribute the profit among all the heirs or beneficiaries who are separating.
But in the event that one of the heirs or one of the parties of the couple decides to keep the property, in addition to compensating the other party in cash, they must bear the taxes related to the excess award. How should the beneficiary act in these cases?
"Until now, the Treasury's criterion was to consider that this excess allocation should not be taxed as a true transfer, since it was due to the impossibility of carrying out a distribution of different assets, rather than a sale of the property," says José María Salcedo, legal partner at Ático Jurídico.
And he clarifies, "as real estate is indivisible assets that greatly detract from its value in the event of division, they are not taxed under the Property Transfer Tax (ITP) modality, but rather through the Documented Legal Acts (AJD), with a tax rate minor, which is between 1% and 2% of the value of the property.”
However, a resolution from the General Directorate of Taxes last April considers that two operations occur in these cases, and that they must be taxed separately.
On the one hand, the termination of the condominium occurs, which, as we have explained previously, occurs when the properties are awarded to one or some of the owners, compensating the rest in cash.
“In these cases it is not understood that there is a transfer, and the asset dissolution will be taxed only in the AJD modality with its gradual rate. The tax base will be the declared value of the properties. The taxpayers of the tax will be the community members, for the properties awarded to them,” they clarify from Ático Jurídico.
On the other hand, and with the new Treasury criteria, a second operation occurs with the excess allocation. That he would also have to pay taxes for the gradual AJD fee. In this case, the tax base will be the value of the excess allotment, and the taxpayer will be those who are awarded the properties.
The law firm offers two options to those affected:
If the Treasury's criteria are assumed, and you pay taxes twice, you can request rectification of the self-assessment submitted, and the return of undue income. Within the subsequent four years, counted from the last day of the deadline they had to submit the self-assessment.
The other option is to continue as before and pay the AJD once for the termination of the condominium as before. “If the Treasury verifies the operation and intends to tax the AJD also for the excess award, the assessment issued can be appealed. We consider that the possibilities of success are high, and that it will be normal for said criterion not to withstand the examination of the Courts,” the law firm concludes.