b) Lucrative transfers due to the death of the taxpayer
In the case of lucrative transfers due to the death of the taxpayer, the Law excludes from taxation any possible gain (known as "capital gains of the deceased") or capital loss that may occur from the transfer of his assets to his heirs, regardless of who is the beneficiary of the succession.
Precision: transmission through succession agreements (contractual succession)
The Resolution of the Central Economic-Administrative Court (TEAC) of March 2, 2016, Claim number 00-02796-2015, issued in an extraordinary appeal for the unification of criteria, has indicated that the patrimonial alteration made evident on the occasion of the transfers made through the institution of the separation regulated in Law 2/2006, of June 14, of Civil Law of Galicia is subject to the provisions of article 33.3.b) of the Law of IRPF , so it is considered that in these cases there is no capital gain or loss subject to IRPF, since the characteristics of this succession agreement of Galician civil law allow us to conclude that we are dealing with an acquisition mortis causa. This criterion has been endorsed by the Supreme Court Judgment of February 9, 2016, issued in cassation appeal no. 325/2015 (ROJ: STS 407/2016).
As a consequence of the above, the cases of transfers of assets derived from succession agreements, including those other than separation, are considered transfers due to death for the purposes of applying the provisions of article 33.3.b) of Income Tax Law, even if the death of the transferor has not occurred.
In this regard, it should be noted that the institution of "succession agreements" (contractual succession), prohibited under common law (articles 1,271, 658 and 816 of the State Civil Code), is maintained in the civil, regional or special laws of certain Autonomous Communities where the Civil Code is not fully in force (Aragon, the Balearic Islands, Catalonia, Galicia, Navarre and the Basque Country).
The extension this criterion is confirmed by the incorporation into article 36 of the Income Tax Law of the subrogation of the beneficiary in the position of the deceased in cases where the acquired asset is transferred before the expiration of five years from the celebration of the succession agreement or the death of the deceased, if earlier. See in this regard the section entitled “ Determination of the amount of capital gains or losses: general rules ” of this Chapter.