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News
The Supreme, in favor of the taxpayer
 10

  OCT

The Supreme, in favor of the taxpayer

Allows you to deduct more for an inherited or donated home for rent

The Supreme Court has given joy to those taxpayers who have rental homes from an inheritance or donation

The Supreme Court has given joy to those taxpayers who have rental homes from an inheritance or donation. Contrary to the interpretation of the Tax Agency, it has declared in a sentence of September 15, that the amortization expense, which taxpayers can deduct in their personal income tax, must be calculated on the real value of the home, declared in Inheritance and Donations Tax (ISyD), and not on the value of expenses and taxes paid for the acquisition, as estimated by the Treasury. This in practice means that the taxpayer can deduct more amount.

"The amortization of the property is one of the most common expenses that can be deducted by taxpayers who obtain income from the lease of a property. It is also an amount applicable each year, which is calculated on the value of the construction (the land is not amortized). And that, depending on the value of the property, it can have an interesting amount ”, says José María Salcedo, partner of the Ático Jurídico law firm.

Specifically, the Personal Income Tax Law allows a deduction of 3% of the satisfied acquisition cost or of the cadastral value. The problem arises when the property was acquired by inheritance or donation, so there was no acquisition price as such. In fact, the Treasury and the Courts maintain contradictory positions in this regard and especially on the “satisfied acquisition cost”.

For the Treasury "the acquisition cost satisfied" in an inherited or donated home is the cost paid in the Inheritance and Donations Tax, in the municipal capital gain, in the expenses of notary, registration, etc. Therefore, the 3% amortization will be applied to the greater of the expenses and taxes or the cadastral value of the property.

But, on the other hand, the Supreme Court and some Courts, such as the Superior of Justice of the Valencian Community or that of the Basque Country, hold a different criterion: they consider that "the acquisition cost satisfied" must be "the declared value of the asset to Effects of Inheritance and Gift Tax ”, plus acquisition expenses, as Salcedo recalls.

The Valencia TEAR was also favorable to this interpretation, and in recent months, it had been canceling the settlements issued by the Tax Agency, in which taxpayers were prevented from amortizing the value of the property according to the value declared in the ISyD. At the same time, said Court also considered the requests for rectification of personal income tax, raised for this reason.

Although the matter was on the table of the High Court, the Treasury has not waited to know the decision of the Supreme Court and has dedicated itself to initiating sanctioning procedures against many taxpayers who amortized their properties according to the value declared in the ISyD. The Treasury alleged that “there was an omission of the due diligence since the regulations expressly regulate the requirements for the expenses to be tax deductible without this conduct being able to be protected by a reasonable interpretation of the norm. There is no involuntary error or a simple discrepancy of criteria regarding the content and scope of the provision, which shows the intentional element, understanding that the offense has been committed. "

Amortization must be calculated on the declared value in the ISyD

The Supreme Court has tipped the balance in favor of the citizen, dismissing the appeal filed by the Tax Administration. The opposition to said appeal has been carried out by the lawyer José María García Guirao, partner of the tax department Devesa y Calvo Abogados.

The Supreme Court considers, in the first place, that the amortization concept is linked to the value of the asset, and its recovery. And this, regardless of whether, to acquire the property, it was necessary to make an investment or not. Thus, the High Court declares that "considering that the amortization only includes the expenses and taxes assumed for the acquisition of the property, is to ignore the meaning of the term amortization."

Secondly, the Supreme Court recalls that "the Law expressly relates two resulting values, not one value, the cadastral one, with the strict expenses and taxes paid to acquire the real estate that, however you look at it, does not at all incorporate a value of said real estate. " Therefore, the purpose of the standard is to compare the acquisition value and the cadastral value, without distinguishing, in the first case, whether the acquisition was for consideration, or free.

With this judgment, the High Court establishes a doctrine of cassational interest in the sense that "the correct interpretation of art. 23.1.b) of the LIRPF, is, as stated in the judgment of instance, which it understands that for To calculate the determination of the net income, the amounts destined to the amortization of the property and of the other assets assigned with it will be deducted, provided that they respond to its effective depreciation, under the conditions that are determined by regulation, and in the case of properties acquired free of charge in the acquisition cost satisfied is included in the value of the asset acquired in application of the rules on Inheritance or Gift Tax or its proven value in these encumbrances. "

How it affects taxpayers

José María Salcedo points out that this ruling opens the door for taxpayers to cancel those settlements, notified by the Treasury, denying them their right to deduct the amortization expense calculated on the value of the property declared or proven for ISyD purposes, and that they are still within an appeal period, or with an appeal pending to be resolved.

“In addition, the sentence will allow to request the rectification of the self-assessments presented in the last four years, and the return of undue income. And this, if in those years the amortization was practiced without taking into account the value of the property declared in the ISyD. At this time, it is still possible to request the rectification of the financial years 2017, 2018, 2019 and 2020 ”, the expert from the Ático Jurídico firm says.
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