Golpe fiscal a los matrimonios en su inversión en vivienda habitual

The Spanish tax authorities have capped the tax exemption for couples investing in their primary residence at 50%. According to the Central Economic and Administrative Tribunal (TEAC), when one spouse sells their private property to purchase a new habitual residence as a financial partnership, the tax exemption for reinvestment is limited to the percentage of ownership actually acquired in the new property.

If the acquisition is declared as financial without explicit allocation of shares, the maximum tax exemption reduces to 50%, regardless of the source of funds.

This unified ruling impacts the financial and tax planning of couples planning to change their primary residence using only one spouse's private assets. Now, couples who invest the entire amount from the sale of their previous home into a new property under a financial partnership will only receive half of the tax exemption for the construction or purchase cost of the new property, according to Article 38.1 of the IRPF Law.

The remaining half of the gain from the original property's transfer will be subject to taxation on the savings base.

This provision may result in additional provisional liquidations and unexpected tax debts for families who believed contributing funds alone were sufficient to access the tax benefit. Moreover, it prevents the non-contributing spouse from benefiting from the exemption as they have not transferred any previous habitable property from their ownership.

The TEAC's intervention aims to resolve the inconsistencies in criteria among different Economic and Administrative Regional Tribunals (TEAR). The Cantabria TEAR had supported the Tax Agency's State (AEAT) position, dismissing claims by taxpayers demanding a full 100% exemption, arguing that the invested money originated solely from their private accounts.

Conversely, other bodies like the Tax Agencies of Valencia and Andalusia had issued opposing resolutions in previous years, citing the Andalusian tribunal's June 2012 ruling. These autonomous regional courts considered the origin of funds as the determining factor, asserting that the financial nature of the new habitual residence did not prevent the full exemption for the contributing spouse if it was proven that the sale proceeds were entirely used to finance the new household.

To resolve the controversy, the TEAC examined the interaction between civil and tax legislation. From a civil standpoint, a financial partnership is considered a Germanic or common-law community, as per the Supreme Court's doctrine. In such communities, spouses do not possess individual shares or are owners of a physical or theoretical half of the common assets during marriage.

However, the TEAC clarifies that, for tax purposes under Article 11 of the IRPF Law, the presumption of individualization of earnings applies. This statutory rule stipulates that common assets will be attributed equally to each spouse, unless documented justification is provided for a distinct share of participation. Consequently, the fiscal presumption of 50% attribution prevails over the private origin of the funds.

Consistent with the DG of Taxes' and the AEAT's arguments, the appeal tribunal emphasizes that the right to a reinvestment exemption requires the taxpayer to allocate funds for acquiring a patrimonial element that becomes their sole legal ownership. In cases where one spouse contributes more funds than their share for financing a financial partnership, the excess portion over their 50% share is treated as indirect financing or assistance to allow their spouse to acquire their respective half of the property.

Thus, as this second half of the money is destined for a third party, it does not meet the fiscal requisites for reinvestment outlined in Article 38 of the IRPF Law. This interpretation aligns with several binding consultations of the DG, such as V0120-20 or V1248-22, which cap the tax benefit at the actual share of ownership. The TEAC's ruling calls for greater rigor and prior advice for taxpayers seeking to reinvest private patrimonial gains.