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Practical manual for Income Tax 2024. Part 1

Beneficiaries and children who give the right to apply the deduction

Note: Article 64 of Law 31/2022, of December 23, on the General State Budget for the year 2023 ( of December 24), amended the Personal Income Tax Law to extend the cases of application of the maternity deduction to women who find themselves in any of the following circumstances:

  1. who at the time of the birth of the minor receive contributory or assistance benefits from the unemployment protection system, or

  2. who are registered in the corresponding Social Security or mutual fund scheme at the time of the birth of the minor, or

  3. who at any time after the birth of the child are registered in the corresponding Social Security or mutual fund scheme with a minimum period of 30 days of contributions.

The requirement to be self-employed or employed to qualify for it has also been removed, as well as the limitation of the deduction amount to contributions accrued in the tax period.

The new regime is applicable from January 1, 2023 not only to children born during that year, 2023, but also to those born previously who have not reached the age of 3 years, when at the time of birth or at a later time any of the aforementioned circumstances occur.

A. Beneficiaries of the deduction

Article 81 of the IRPF Law regulates the deduction for maternity that reduces the differential rate of IRPF and that the following people may apply:

1. Women with children under three years of age with the right to apply the minimum for descendants who meet any of the following requirements:

  1. That at the time of birth of the minor receives contributory or assistance benefits from the unemployment protection system.

  2. That they are registered in the corresponding Social Security or Mutual Fund regime:

    • at the time of birth of the minor or

    • at any time after birth with a minimum period of 30 days of contributions.

      For the purposes of calculating the minimum period of 30 days of contributions, the days of contributions prior to birth, foster care or adoption will be taken into account, and it is necessary that registration in the corresponding Social Security or mutual insurance scheme takes place after birth, foster care or adoption. 

Important: when in the 2022 tax period you would have been entitled to the maternity deduction and the child support supplement provided for in Law 19/2021 in relation to the same child, the maternity deduction may continue to be applied from 1 January 2023, even if one of the parents was entitled to said supplement with respect to said child, provided that the rest of the requirements required from 1 January 2023, referred to previously (transitional provision 37 of the Personal Income Tax Law ) are met.

Therefore, both benefits will only be compatible for the same child if the child's right to receive the child support supplement in 2022 has been granted, upon request, provided that the remaining requirements established as of January 1, 2023, are met.

2. In the event of the death of the mother or when custody is exclusively attributed to the father or, where appropriate, to a guardian , provided that they meet the requirements set forth in article 81 of the Personal Income Tax Law , discussed above, the latter will have the right to the pending deduction.

Therefore, in this case, the surviving parent or guardian with children under three years of age entitled to apply the minimum for descendants, who at the time of the birth of the minor receives contributory or assistance benefits from the unemployment protection system, or who at that time or at any time thereafter is registered with the corresponding Social Security or mutual fund scheme with a minimum period, in the latter case, of 30 days of contributions, will be entitled to the deduction for pending maternity, that is, the one corresponding to the time remaining until the child or ward reaches three years of age.

In the event that there are several taxpayers entitled to the maternity deduction for the same ward or foster child or minor under their care and custody for pre-adoption cohabitation or by court order , the amount must be divided equally between them.

Note: With the sole exception of the cases indicated in letter b) above, the maternity deduction corresponds entirely and exclusively to the mother, provided that she meets the requirements indicated to be entitled to it. Consequently, in no case other than those mentioned will the application of the deduction by the father be admissible, nor will the distribution or apportionment of the same between the father and the mother.

B. Children who entitle the application of the deduction

• Natural children , from the month of their birth until the month before they turn three years of age, both inclusive.

• Adopted children and minors linked to the taxpayer by reason of guardianship or permanent foster care or delegation of guardianship for pre-adoption cohabitation.

Remember : may be applied from January 1, 2023 the deduction for children under 3 years of age who were born before that date provided that they entitle the person to apply the family minimum for descendants, and one of the requirements demanded by article 81 in its current wording is met.

In cases of adoption or permanent foster care or delegation of guardianship for cohabitation , the deduction may be applied, regardless of the age of the minor, during the three years following the date of registration in the Civil Registry.

When registration is not necessary, the deduction may be applied during the three years following the date of the judicial or administrative resolution declaring it.

When the adoption of a minor who has been in a permanent foster care regime, with delegation of guardianship for cohabitation takes place or when a change occurs in the foster care situation, the deduction will be applied during the time remaining until the maximum period of three years previously mentioned is exhausted.

In cases of guardianship, the guardian will be entitled to the amount of the deduction corresponding to the time remaining until the ward reaches three years of age.

Note: The deduction is not applicable in the case of grandchildren and other descendants by consanguinity other than children, nor in the case of simple, urgent or temporary foster care, nor in the case of minors for whom custody and guardianship is granted by court order.