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Practical manual for Income Tax 2024. Volume 1

Patrimonial losses that are not computed for tax purposes as such

Regulations: Art. 33.5 Law Income Tax

The following will not be counted as capital losses:

A. The unjustified ones.

Particular case: computation of losses due to theft or fraud

For these purposes, two cases must be distinguished:

  • That the identity of the author of the theft or fraud is unknown: In this case, despite constituting a capital loss in accordance with the provisions of 33.1 of the Personal Income Tax Law , it is not possible to determine the existence of a right to credit in favor of the defrauded taxpayer against the former, so for this loss to have an impact on Personal Income Tax it must be justified. Therefore, the loss may only be computed once the fact (theft) and the amount stolen have been sufficiently proven, for which the provisions of article 106.1 LGT will apply.

  • That it is possible to know the identity of the scammer: In this case, it is considered that there is a right to credit in favor of the taxpayer, therefore, pursuant to article ) of the Personal Income Tax Law, it will be necessary to initiate legal proceedings, allocating the capital loss to the tax period in which one year has elapsed since the start of legal proceedings other than bankruptcy proceedings that aim to enforce the credit without it having been satisfied.

In both cases, as it does not arise from the transfer of assets, the capital loss will be included in the general tax base, in accordance with the provisions of article 48 of the Tax Law.

B. Those due to lucrative transmissions by acts "inter vivos" or by liberality.

These capital losses arising from inter vivos lucrative transfers are not computed for tax purposes either for the total amount of the acquisition value, or for the difference between the acquisition value and the transfer value. Resolution of the TEAC of May 31, 2021, Claim number 00/03746/2020, issued in an extraordinary appeal for the unification of criteria.

"Capital losses arising from lucrative inter vivos transfer due to the difference between the acquisition value and the transfer value must not be in the taxable base of the transferor's personal income tax, even if capital gains also declared, derived from the same type of transfer, are also included in the same act."

In this regard, the aforementioned ruling states that economic loss cannot be confused with tax loss. Economic loss occurs whenever an asset is donated or transferred free of charge, since the asset leaves the donor's estate, and the donor receives no compensation. This economic loss is never taken into account in the IRPF . On the other hand, the tax loss does not occur in all cases where an asset is transferred free of charge if the acquisition value of the asset is lower than its transfer value, understanding this, since there is no price, as indicated in articles 34 and 36 of the Personal Income Tax Law , as the one corresponding in accordance with the regulations governing ISD .

Therefore, if despite the economic loss inherent to any donation, there is a tax gain, the donor must pay tax on it in the IRPF . However, if the donor experiences a loss, not only economic but also fiscal, he cannot deduct it from his IRPF in accordance with the provisions of article 33.5.c) of the IRPF Law .

See the interpretative criterion established by the Supreme Court (Administrative Litigation Division) in its FJ 4 Judgment No. 616/2024, of April 12, issued in cassation appeal No. 8830/2022 (ROJ: STS 2004/2024) and reiterated in Judgment No. 1675/2024, of October 23, issued in cassation appeal No. 1998/2023 (ROJ: STS 5122/2024) 

C. Those due to consumption.

Thus in the case of perishable goods or, when it comes to durable consumer goods, losses in value resulting from their normal use not be computed because they are due to consumption. For example, if a vehicle is purchased for 15,000 euros and sold five years later for 4,800 euros, which is the same as its market value, there has not actually been any capital loss for tax purposes, since the difference in value is due to depreciation due to use of the vehicle.

The payment of amounts in the form of late payment interest by the taxpayer to the Administration, although it generates a change in assets (decrease in assets), is configured as a case of application of income to the consumption of the taxpayer, so it cannot be computed as a capital loss and, therefore, has no impact on the IRPF in accordance with the provisions of article 33.5.b) of the IRPF Law .

The attorney and solicitor fees for defending their own interests in court are also considered a case of applying income to the taxpayer's consumer actions, in this case the compensation for the provision of professional services. These are expenses incurred in their particular sphere, with no connection to income that could make them deductible, so they cannot be computed as a capital loss and have no impact on the tax assessment.

D. Those due to gambling losses obtained in the tax period that exceed the winnings obtained in gambling in the same period.

The calculation of profits and losses obtained in the game is carried out globally (those obtained by the taxpayer in the tax period) taking into account the profits and losses from the different games.

In no case will losses arising from participation in the games referred to the Thirty-Third Additional Provision of the Income Tax Law be computed, which are the following:

  1. Prizes from lotteries and bets organised by the State Lottery and Betting Society and by the bodies or entities of the Autonomous Communities, as well as from draws organised by the Spanish Red Cross and from the types of games authorised by the Spanish National Organisation for the Blind.

  2. Prizes from lotteries, bets and draws organised by public bodies or entities that carry out non-profit social or assistance activities established in other Member States of the European Union or the European Economic Area and that pursue objectives identical to those of the bodies or entities indicated in the previous letter.

It should also be noted that prizes derived from programs developed in the media in which no financial outlay is made to participate in them, and prizes derived from random combinations for advertising or promotional purposes may not be reduced by the amount of losses obtained in the game.

Note: a purposes of the provisions of article 33.5 d) of the Personal Income Tax Law , the definition of gambling referred to in article 3.a) of Law 13/2011, of May 27, on the regulation of gambling, shall be deemed applicable, according to which gambling is understood to be any activity in which sums of money or objects that can be economically evaluated in any way are risked on future and uncertain results, which depend to some extent on chance, and which allow their transfer between participants, regardless of whether the degree of skill of the players predominates or whether they are exclusively or fundamentally a result of luck, chance or chance. Prizes may be in cash or in kind depending on the game mode.

E. Those derived from transfers with repurchase of the transferred asset.

They may not be included for liquidation purposes as capital losses in the same financial year in which the losses arising from the transfer of assets are generated, when the same transferred assets are reacquired within a certain period or, in the event that the transferred assets are securities or shares, when homogeneous securities or shares are acquired.

This is considered to be the case when they come from the same issuer and are part of the same financial operation or respond to a unity of purpose, including the systematic obtaining of financing, which have the same nature and transmission regime and attribute to their holders a substantially similar content of rights and obligations.

However, the homogeneity of a set of securities shall not be affected by any differences between them in relation to their unit value; dates of launch, material delivery or pricing; placement procedures, including the existence of tranches or blocks intended for specific categories of investors; or any other aspects of an accessory nature. In particular, homogeneity will not be altered by the division of the issue into successive tranches or by the provision of extensions.

The application of this precautionary rule is conditional on the repurchase being carried out within the following periods :

  1. Two months before or after the transfers, in the case of securities or shares admitted to trading on one of the official secondary securities markets defined in Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments.

    Please note that Directive 2004/39/EC has been repealed with effect from 3 January 2017 by Directive 2014/65/ EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments. This, in its article 94, provides that references to Directive 2004/39/EC will be understood as references to Directive 2014/65/EU.

  2. One year before or after the transfers , when it concerns securities or shares not admitted to trading on any of the official secondary securities markets mentioned above.

  3. One year after the transfer , in the case of other heritage elements. It should be noted that in any case the same transferred asset must be acquired.

The capital loss obtained, which must be declared and quantified in the declaration of the fiscal year in which it was generated , will be integrated for liquidation purposes when the acquired asset is transferred or, in the case of securities or shares, as the securities or shares that remain in the taxpayer's assets are transferred.