General scheme

Specific valuation standard

In cases where partners separate, as well as in cases of dissolution of companies, the difference between the following will be considered capital gains or losses, regardless of those corresponding to the company:

• Value of the social liquidation share or the market value of the assets received , and

• Purchase value of the title or capital participation that corresponds .

  Article 37.1.e) of the Personal Income Tax Law only refers to “cases of separation of partners ...”, without distinguishing or specifying what the causes of separation of the partner from the company should be, nor limiting them to cases in which commercial regulations grant partners the possibility of exercising the right to separate from the company, so it must be understood that the cases of 'separation of partners' contemplated in the aforementioned article 37.1.e) include all cases in which the partner ceases to hold such status with respect to the company.

  For this reason, if a natural person partner transfers all of his shares to the company in which he participates for their amortization via a capital reduction, we must go to the result of this operation, which is the "separation of the partner", in that he stops participating in the company and loses the status of partner, which entails that the specific valuation rule contained in article 37.1.e) of the Personal Income Tax Law is preferably applied, which considers the amount received as capital gain and the general rule provided for in article 33.3.a) of the Personal Income Tax Law is not applicable for the reduction of capital with return of contributions, which would lead to the income obtained by the partner being classified as income from movable capital.

  However, the loss of the status of partner of the transferor due to having sold to a third party, other than the company, all of his shares or interests, cannot be considered "separation of the partner" for the purposes of applying the valuation rule of article 37.1.e) of the Personal Income Tax Law ## , with the valuation rule of article 37.1 b) being applicable. See for this purpose the Supreme Court Judgments No. 1680/2024, of 24 October, issued in cassation appeal No. 8613/2023 (ROJ: STS 5451/2024), and 1735/2024, of October 30, issued in cassation appeal no. 2228/2023 (ROJ: STS 5169/2024). 

Shares acquired before December 31, 1994

In this case, if a capital gain is obtained, the part of the capital gain generated before January 20, 2006 (the only one to which the reduction or abatement coefficients are applicable) must be distinguished from that generated after said date, to which the reduction or abatement coefficients are not applicable.

The determination of the capital gain generated prior to January 20, 2006 and the application, where applicable, of the reduction coefficients will be carried out in accordance with the distribution rules discussed in this same Chapter.