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Exemption for purchase of a habitual residence after a divorce

Posted by Michel B. on 22/10/2019

During the second quarter of the year, there were a total of 27,278 divorces, 3% less than in the previous quarter, according to data from the General Council of the Judiciary. In case of divorce, it is usual for one of the spouses to keep the use of the house and for the other to abandon it, even if both continue paying the mortgage (if any).

But what happens if the house is sold? The General Directorate of Taxes has clarified who can enjoy the exemption for reinvestment in housing, that is, the advantage of not paying taxes in the IRPF for the sale of habitual housing (on condition of buying another).

Taxes estimates that, in case of sale of the habitual house after a divorce, only the person who stays in the house will be able to enjoy the exemption for reinvestment in housing. The ex-spouse forced to leave the home is left without this tax benefit.

That is, Taxes does not take into account that the house may not be the usual one at the time of the sale, due to circumstances such as separation, divorce or annulment. And it is that to enjoy the exemption for the purchase of another home, it is a sine qua non condition that the transmitted property be the usual one.

The Treasury relies on this provision to deny the tax exemption for home purchase to the ex-spouse who has left the home. Salcedo tilda of “incoherent” this situation, since it does allow the former spouse who no longer lives in the house to deduct the amount of the mortgage that is still obliged to pay.

Therefore, it encourages taxpayers to demand the application of the exemption for reinvestment. How? Recommends, as a first and prudent option, that the taxpayer declare the capital gain and subsequently request the rectification of the self-assessment presented.

However, Salcedo warns that Taxes has declared on occasion that the exemption for reinvestment in housing is a tax option that must be included in the declaration, within the deadline for submitting it. “If this is not done, the Treasury criterion is that it will no longer be possible to request the rectification of said self-assessment. This is a very debatable criterion, but that is an obstacle for taxpayers who want to request the rectification of their declaration, in order to apply the exemption in an exercise in which they initially did not include it. Therefore, it will be normal for these taxpayers to have to go to court. ”

This route would also be the one that should be used by taxpayers who in their day did not declare the capital gain exempt, and want to do so now. But as long as you have not prescribed the exercise to rectify.

The second option would be to declare the capital gain exempt, and then wait for the Treasury to notify a settlement, to appeal it.

But Tributes does defend the relief for home purchase
The lawyer of Legal Attic points out that although the Treasury does not recognize the exemption for the purchase of another home for the person who left the house after a divorce, it does support the tax relief for the purchase of the usual home. That is, it allows the ex-spouse who does not reside in the house, but who continues to pay for the home, to apply the tax deduction in the IRPF. And this for the following reasons:

  1. Taxpayers who acquired their habitual residence before 12/31-2012 apply all the regulations in force on said date, in relation to the deduction for investment in habitual housing. This is contemplated in the Eighteenth Transitory Provision of Law 35/2006.
  2. Therefore, Article 55.1 of the Personal Income Tax Regulation is applicable, which allows to deduct “in cases of marriage annulment, divorce or judicial separation, the amounts paid in the tax period for the acquisition of what was during the validity of the marriage his habitual residence, as long as he continues to have this condition for the common children and the parent in whose company they remain. ”

According to Taxes, the purpose of this rule is to avoid the loss of the right to deduct for investment in housing, by taxpayers who must leave the house as a result of their separation, divorce, or marriage annulment.

In short, the Treasury does not hesitate to consider that the house is still the usual one for the taxpayer who has been forced to abandon it after the divorce and may continue to be deducted for the purchase. But, on the other hand, when selling the house, it loses its usual character and cannot enjoy the exemption for reinvestment.

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