Skip to main content
Practical manual for Income Tax 2024. Part 1

Capital gains and losses that make up the tax base of savings

Regulations: Art. 46 Law Income Tax

Capital gains and losses that arise from transfers of assets form part of the taxable savings base and must be declared in the corresponding section of section F2 of the tax return.

The following may be cited as examples:

  • Capital gains and losses arising from transfers or reimbursements of shares or interests in collective investment institutions (investment companies and funds).

    These capital gains have been subject to a 19% withholding tax or advance payment in fiscal year 2024. The amount of these withholdings and payments on account must be declared in the section of the declaration corresponding to withholdings and other payments on account.

  • Capital gains and losses derived from shares or interests traded on official markets.

  • Capital gains and losses arising from the transfer or exchange of virtual currencies by individuals.

  • Capital gains and losses arising from the transfer of real estate and property rights over real estate.

    Capital gains and losses arising from the receipt of premiums paid for the granting of a purchase option contract .

    The purchase option contract on a property is one in which one of the parties (grantor) grants the other (option holder) the exclusive power to decide whether or not to enter into a main contract of sale, which must be entered into within a certain period and under certain conditions, and may be accompanied by the payment of a premium or price by the option holder.

    Through the purchase option contract, the option holder acquires a right consisting of deciding unilaterally to make the purchase, and the transferor has the corresponding obligation to sell the object for the agreed price and within the period established for exercising the option. The option grantor is bound to maintain the offer within the predetermined period, within which the option holder may exercise his right, thereby extinguishing or consummating the purchase option, at the same time as the corresponding sales contract is perfected.

    The granting of this purchase option (in exchange for the payment of a premium) represents an exercise and limitation of the "ius usandi" of its holder (in that the grantor undertakes not to dispose of the asset during the option period), which represents an alteration in the composition of the assets of the owner of the asset, a situation that may be included in the concept of alteration of assets in the personal income tax regulations, so the income obtained is a capital gain that is taxed independently of any gain that may be produced subsequently on the occasion of the formalisation of the sale.

    The income obtained in exchange for offering the right to purchase (the contract premium) constitutes a gain whose imputation must be made, in accordance with the provisions of article 14.1 of the Personal Income Tax Law, in the tax period in which the right to purchase the property is formalized and its amount will be determined by the value actually paid, provided that it is not less than the market value, as there is no acquisition or improvement cost, because said alteration does not derive from a previous acquisition. The expenses and taxes inherent to the operation that have been paid by the grantor will be deducted from this value.

    As regards the integration of capital gains that arise from the receipt of premiums paid for the granting of an option contract, Supreme Court Judgments No. 803/2022 and 804/2022, both dated June 21 ( ROJ : STS 2599/2022 and STS 2598/2022, respectively) have established as a criterion its integration into the savings income defined in article 46 of the Personal Income Tax Law, since it implies a transfer, based on the "traditio", derived from the delivery of powers inherent to the right of ownership to which the owner temporarily renounces.

  • Capital gains and losses arising from transfers of other assets such as, for example, shares not admitted to trading, etc .

    Particular case: sale of second-hand goods on digital platforms

    For the purposes of taxation in Personal Income Tax , two types of sellers must be distinguished in sales transactions carried out through these platforms: individuals and those who carry out an economic activity.

    • Transmission of used goods through digital platforms, by private sellers:

      If you obtain capital gains from the sale or sales you make through platforms (that is, if you sell a product for a price higher than the price you acquired it for), you will be required to declare said capital gain in your Personal Income Tax , in boxes [1624] and following, in the section called "Capital gains and losses derived from transfers of other assets (to be included in the savings tax base)".

      To determine said capital gain, the acquisition and transfer values will be those established in accordance with the provisions of articles 35 and following of the Personal Income Tax Law .

      However, unlike the above, capital losses (if the sale of used goods is made for an amount lower than the acquisition amount) derived from these sales will not be deductible as they are derived from personal consumption, in accordance with the provisions of 33.5 of the Personal Tax Law.

    • Transmission of used goods through digital platforms, by business or professional sellers:

      Taxpayers who carry out an economic activity through digital platforms must pay taxes under the same conditions as any other economic activity, issuing an invoice with VATto the buyer for each item sold, and include the net income from their activity in their personal income tax return, according to the method of determining the net income in which they are found (direct estimation or objective estimation).

      For these purposes, please note that Council Directive ( EU) 2021/514 of 22 March 2021, known as DAC 7, amending Directive 2011/16/ EU, imposes new registration and reporting obligations on operators of digital platforms in the EU and outside the EUfrom 1 January 2024 on operators of digital platforms in the ##4##EU ##3 ##3##and outside the ##4## EU ##4## .

      This exchange of information within the framework is complemented at the international level by Spain's signing of the Multilateral Agreement between Competent Authorities on the automatic exchange of information relating to income obtained through digital platforms within the scope of the Organisation for Economic Co - operation Development (OECD), as well as other international agreements signed with the same objective.

      In Spain, the transposition of both international standards has been carried out, at a legal level, through Law 13/2023, of May 24, which modifies Law 58/2003, of December 17, General Tax Law, introducing a new Additional Provision 25, which regulates the information and due diligence obligations related to the informative declaration of platform operators obliged in the field of mutual assistance and, at a regulatory level, through Royal Decree 117/2024, of January 30 and Order HAC /72/2024, of February 1, which approves models 040 to manage the registration, modification and deregistration of platform operators and 238 for the communication of information. You can find more information about this through this link .

      Thus, with regard to sales of tangible assets other than the leasing or temporary transfer of use of real estate (form 179), DAC 7 requires digital platform operators to inform the AEAT about those sellers who, during a calendar year, have completed more than 30 sales and generated more than 2,000 euros from these sales.