The contribution of private assets without economic consideration to the community property is an operation worthy of being studied from a tax point of view, especially after the last ruling of the Supreme Court.
The subjection to the Tax on Onerous Patrimonial Transmissions is discarded, since in this case we speak of gratuitousness, instead of onerousness. This fact in turn raises its possible taxation in the Tax on Donations, since it is an intervivos delivery free of charge. However,
the marital partnership, given its lack of legal personality, is not a taxpayer of said tax, reasoning set forth in Supreme Court Ruling No. 295/2021, of March 3, 2021, and reiterated again in the new ruling of January 10, 2024.
On the other hand, it is particularly interesting to study the taxation in the Personal Income Tax. Specifically, the ownership of the assets of the marital partnership must be attributed to each spouse in equal halves, which implies an alteration in the assets of the contributor, and it must be determined whether the same is considered a capital gain or a capital loss. The latter will be calculated by the difference between the transfer value and the acquisition value of half of the property being contributed, in accordance with articles 35 and 36 of the LIRPF.
From our firm, we recommend seeking specialized tax advice before carrying out this type of operation to study its cost, or once it has already been carried out, to include it correctly in the tax return, especially now that the income tax campaign is approaching.
Isabel María Díaz Rubio
