Both spouses will be able to access the tax exemption for selling the house after the divorce

2023-05-17 16:12:12

The Supreme Court puts an end to one of the most controversial aspects of the personal income tax exemption to which people who are part of a couple and who sell their house when separating are entitled. When these capital gains are reinvested in the purchase of a new habitual residence, they give the right to this exemption, provided that at the time of the operation the taxpayer lived in the house.

The problem is that, in many cases, one of the divorced or separated spouses could not make use of this tax incentive for reinvestment, since they no longer live in the aforementioned address, since only one of the parties was awarded the use in the separation. In other words, unequal treatment was being generated in tax terms for the person who left the house as their first habitual residence to the other member of the couple.

From now on, both parties will be entitled to the exemption. Specifically, the Supreme Court ruling published this Wednesday establishes that the circumstance that occurred so far “does not occur in spouses who had to leave the family habitual residence due to attribution of use to the other spouse.”

The sentence prosecutes a case in which the State Tax Agency denied the exemption of profits from the sale of the habitual residence for this reason, despite meeting all the requirements, except for having the habitual residence. So it rules 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 dwelling habitual at the time of the transmission or on any day of the two years prior to it (…) it will be understood fulfilled when such situation occurs in the spouse who remained in the same”.

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.