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Given the recent introduction of the concept of reference value, through Law 11/2021, of July 9, on the prevention and fight against tax fraud, an additional doubt may arise about what acquisition value we should take if we decide to sell our home:
- Value of the acquisition deed.
- Value verified by the tax office, or
- Reference value.
Mainly we must differentiate between two situations, depending on whether they are onerous or lucrative transmissions:
1. ONEROSOUS TRANSMISSIONS
This capital gain or loss occurs when the sale of the property generates avariation in the value of the taxpayer’s assets, which will be the difference between the acquisition and transmission values.
The doubt may arise as to which is the correct acquisition value to declare, since there will be important differences depending on whether one or the other is applied, these values being the following:
Satisfied acquisition value
It is the actual amount for which the property was acquired, plus the cost of the investments and improvements made in the acquired assets, and the expenses and taxes inherent to the acquisition, excluding the interest paid by the acquirer; and reduced by the amount of amortization.
Value verified by the Administration
According to consultation V1157-21 of the General Director of Taxes, if a verification of values had been carried out for the purposes of ITP and AJD, the verified value will be the actual amount of acquisition value for the purposes of determining the capital gain or loss, when the transfer of the property occurs in the personal income tax.
Reference value
If the amount paid and recorded is lower than the reference value, but has not been verified by the Administration, this new reference value will not affect the determination of the acquisition value, as this will continue to be the actual amount paid.
This is established in article 35 of the Personal Income Tax Law, with the same opinion being the response to query number V1694-22 of the General Direction of Taxes, in which it concludes that: “…this will be the way of determining the values of acquisition and transfer of the transferred property for the purposes of calculating the capital gain or loss in the Personal Income Tax. And this is regardless of the determination of the tax base that applies to the Tax on Property Transfers and Documented Legal Acts (ITPAJD).”
2. LUCRATIVE TRANSMISSIONS
To analyze this case, we must go to article 36 of the Personal Income Tax Law, which establishes that:
(…) When the acquisition or transfer had been for profit The rules for transfers to onerous securities will apply,taking as the actual amount of the respective values those that result from the application of the Inheritance and Donation Tax rules, without exceeding the market value (…)
Therefore, in this case, the reference value will have influence when determining a minimum acquisition value. It will be considered that the transfer value corresponds to the value of the property for the purposes of the Inheritance and Donation Tax, which will be none other than the Cadastre reference value, when the property has such value assigned or the deed value if it is superior.
The same will happen when they acquire a property by donation, if they transfer it in the future, they must take as the acquisition value the one derived from the rules of this tax, that is, the reference value.
