General scheme

Regulations: Articles 34 to 36 Law IRPF and 40 Regulation

Note: Please take into account the summary tables of the general rules that are set out and which you can access at the end of this section.

The determination of the amount of capital gains or losses arising from the transfer, whether onerous or lucrative, of unaffected assets⁽¹⁾; It is determined by the difference between the transmission and acquisition values of the assets.

The acquisition value will be formed by the sum of:
1. The actual amount for which the acquisition was made or, when it was for profit or free of charge (inheritance, legacy or donation), the amount declared or administratively verified for the purposes of the Inheritance and Gift Tax, without the latter being able to exceed the market value.
  In the lucrative transfers of companies or shares referred to in article 20.6 of Law 29/1987, of December 18, on the Tax on Inheritances and Donations ( BOE of 19), the acquisition value will coincide with the original value of the donor since the donee is subrogated in the position of the former with respect to the values and dates of acquisition of said assets.
2. The cost of investments and improvements made to the acquired assets, without taking into account, for these purposes, the costs of maintenance and repair. For these purposes, an improvement is considered to be the compensation paid by the owner to his tenant so that the latter vacates the property.
3. The expenses (commissions, Notary Public, Registry, etc.) and taxes inherent to the acquisition (Property Transfers and Documented Legal Acts, VAT or Inheritance or Donation Tax if the acquisition was made free title), excluding the interest that had been paid by the purchaser.
4. The amount of tax-deductible amortization will be subtracted from the sum corresponding to the above amounts, computing in all cases the minimum amortization. Amortization is not applicable for assets that are not susceptible to depreciation, such as land, securities, etc.
  In relation to the calculation of depreciation, it should be stressed that "tax deductible" amounts correspond exclusively to real estate or personal property leased or subleased, to real rights of use and enjoyment of real estate, to cases of provision of technical assistance that do not constitute economic activity and to the leasing of businesses or mines or subleases. In these cases, the minimum amortization will be computed, regardless of its actual consideration as an expense.
  
  The minimum amortization is the result of the maximum amortization period or the corresponding fixed percentage, depending on each case. For leased properties, the minimum depreciation amount is determined by applying 1.5 percent until December 31, 1998; 2% until December 31, 2002, and 3% from January 1, 2003.
  
  It should also be noted that the depreciation base for real estate acquired for profit is the amount of taxes paid plus the inherent expenses, not the value for the purposes of the Inheritance and Gift Tax plus the expenses and taxes inherent to the acquisition.
The transmission value will consist of:
1. The actual amount for which the transfer was made or the declared value or, where applicable, the value administratively verified for the purposes of the Inheritance and Gift Tax when the transfer was made for profit or free of charge, without this being able to exceed the market value.
  The actual amount of the sale value will be taken as the amount actually paid, provided that it is not less than the normal market value, in which case the latter will prevail.
2. From the above amount, expenses and taxes inherent to the transfer, excluding interest, may be deducted to the extent that they have been paid by the transferor.

In summary, the components of the respective acquisition and transfer values of the different assets not affected by economic activities, depending on whether the transfer is onerous or lucrative, are those indicated in the following tables:

⁽¹⁾The determination of the amount of the capital gain or loss arising from the transfer of assets affected by is discussed in the following section of this same Chapter.^(Back)