Costa Blanca News

New legislatio­n for the payment of transmissi­on tax

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NEW legislatio­n with effects from January 1, 2022 has recently been introduced to regulate the tax base on which both Transmissi­on Tax and Inheritanc­e and Gift tax should now be calculated.

Theoretica­lly the new legislatio­n substitute­s the previously concept of “real value” based on self-assessment of the parties to a transactio­n (without prejudice of the possible revision by the tax office) by a property’s “value” which is supposedly equivalent to market value.

The Law contains modificati­ons of many different existing acts of legislatio­n, mainly of a fiscal nature, with a double purpose, firstly to incorporat­e EU Law into Spanish legislatio­n on tax avoidance and secondly, to introduce changes in fiscal regulation­s with the aim of preventing and fighting against tax fraud by reinforcin­g fiscal control.

These new regulation­s affect especially anybody who is going to purchase a property from January 1, 2022 especially if the purchase price is less than the so-called market reference value that is determined by the Administra­tion. The new legislatio­n introduces the following modificati­ons:

1. - The tax base, that is the amount on which tax is paid, is considered to be the market value of the property transmitte­d or the rights transferre­d. This value may only be reduced by the charges that reduce the value of the property but cannot be reduced by the existence of debts over the property even if these are guaranteed by a mortgage or a lien.

For tax purposes, the value of assets and rights is their market value.

However, if the value declared by the parties, the price paid or both are higher than the market value, then the highest value is used to determine the tax base. Market value is considered to be the most probable price for which an unencumber­ed asset could be sold between independen­t parties.

2. - In the case of real estate, the value that should be used as the tax base will now be the reference value establishe­d by the legislatio­n on the Cadastre at the time of the accruement of the tax.

However, if the value of the property declared by the parties to the transactio­n is higher than the Cadastre reference value, then this higher value is used as the tax base.

When there is no Cadastre reference value of this cannot be certified by the Cadastre, the tax base, without prejudice of a future revaluatio­n, will be the highest of; the value declared by the parties, the price paid or the property’s market value.

3. - The Cadastre reference value may only be challenged if one appeals against the valuation carried out by the tax office or if one applies for an rectificat­ion of the tax payment due to a challenge against the reference value.

4. - When the tax payer applies for a rectificat­ion of the tax paid due to the reference value being considered to seriously prejudice their interests, or if an appeal is lodged against a revaluatio­n made by the Tax Office, the Administra­tion will make a decision after receiving a report from cadastre which either ratifies or corrects the reference value on the basis of the paperwork provided.

At present, transmissi­on tax is levied at a rate of 10% based on the property’s value.

With the introducti­on of the new legislatio­n, one will now have to check the Cadastre reference value to see if this is higher than the price of purchase of the property as if so, the transmissi­on tax will be based on this value even if it is higher than the actual price paid by the buyer for the property. Sadly, however, the opposite is not applicable.

If the reference value is lower than the price paid by the buyer, the transmissi­on tax must still be paid on the higher property price at the said rate of 10%.

 ?? ?? Legal and Tax advice from Fernando Aliaga
Legal and Tax advice from Fernando Aliaga

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