The Supreme Court has ruled that from now on the divorced or separated who sell their habitual residence will be able to benefit fiscally, it does not matter if it is the one who kept the house or the one who had to leave and the years that have elapsed. This sentence marks a before and after in the relations of the divorced with the Tax Agency.
This has been established by the Administrative Litigation Chamber of the high court, which has reviewed the case of a man who has fought against the Treasury until reaching the Supreme Court, which has agreed with him. Until now, the law granted the exemption in Personal Income Tax (IRPF) for the sale of a habitual residence only to those who resided in it or to the divorced person who no longer lived, but only if no more than two years had elapsed. since the separation.
Now the magistrates correct the interpretation of the law and consider that it does not matter how much time has elapsed that they will be able to benefit from the exemption when the capital gains obtained in the transfer of habitual residence are reinvested in the acquisition of a new habitual residence.
Until now, in cases in which the cessation of the effective residence situation has occurred more than two years before the date of transfer of the home, the Tax Administration has been interpreting that one of the requirements would not be met. for exemption from earnings.
This requirement consisted of demanding that the home had constituted the effective residence of the spouse seeking to obtain the exemption, either on the date of the transfer or at least on any day within the two years prior to it. This circumstance may not occur in spouses who had to leave the family habitual residence due to attribution of use to the other spouse.
In the case analyzed, a man had to leave his home after being divorced in 2005. Twelve years later, his ex-spouse decided to sell the house in Valencia where she had lived with their two children. After the sale, the man bought a home and applied the exemption to his income statement, given the allegation that the new home purchased was going to be the usual one.
However, the Tax Agency did not agree with him and withdrew that tax benefit by arguing that the stipulated period of two years had passed. This man appealed through contentious proceedings but the Tax Agency did not give him the reason, so he went to the Superior Court of Justice of Valencia, which did agree. The State Attorney’s Office appealed the sentence but the Supreme Court has not only failed to agree with it, they have established jurisprudence to mark the new interpretation that the prosecutor must maintain.
Therefore, the high court declares as a jurisprudential criterion that “in situations of separation, divorce or annulment of marriage that have determined the cessation of effective occupation as habitual residence for the spouse who has to leave the habitual residence for such reasons, the requirement of effective occupation of the habitual residence at the time of the transmission or on any day of the two years prior to it, which is required by section 3 of article 41 bis of the RLIRPF [Regulation of the Law on income tax on natural persons] shall be deemed fulfilled when such situation occurs in the spouse who remained in the sameâ€.
With this sentence, a jurisprudence is established that delves into the comprehensive interpretation of the set of requirements to enjoy the exemption for reinvestment in habitual residence, and guarantees equal treatment of the spouses affected by these situations.