TAXATION OF SEPARATIONS AND DIVORCE BEFORE A NOTARY

TAXATION OF SEPARATIONS AND DIVORCE BEFORE A NOTARY

 

 

There is no doubt that knowing the price of any product or service is essential in making any decision regarding its acquisition or contracting. In the case of notarial documents, the main part of the cost that they entail derives from the taxes that are levied on the agreements or conventions that they document.

A correct advice in any type of notarial action, today becomes vital, to achieve the best economic conditions, without incurring in any type of tax fraud.

In this entry I want to refer and from a critical point of view with the tax costs that are derived or may be derived from a separation or divorce, when these can be done before a Notary.

WHEN YOU CAN GO TO A NOTARIAL DIVORCE

The issue of separations and divorces before a Notary Public was one of the measures introduced by Law 25/2015 on Voluntary Jurisdiction.

You can only go to the Notary in those cases in which separations and divorces are mutually agreed and when there are no unemancipated minor children or with legally modified capacity who depend on their parents (Article 82 CC).

Under the same conditions, separation and divorce can be formalized before the Clerk of the Court.

THE ECONOMIC CONSEQUENCES OF DIVORCE

As a consequence of separation or divorce, various events with economic content occur or may occur and may be subject to different taxes.

Introducing ourselves, even briefly, to the taxation of separation and divorce before a Notary, requires starting from what the first additional provision of Law 25/2015 on Voluntary Jurisdiction states, which reads as follows:

"The references that appear in norms dated prior to this Law to judicial separation or divorce shall be understood as made to legal separation or divorce. In the same sense, the existing references to "separation in fact by mutual agreement that is conclusively established" must be understood to notarial separation."

What this rule comes to say, translated for tax purposes, is that the consequences of separation or divorce must always be the same, regardless of whether it is processed before the Judge, the Court Clerk or before the Notary, but they already I anticipate that this is not entirely accurate.

The facts of economic importance that can be revealed in a separation or divorce, strictly, are the payment of the pension or compensatory benefit that one of the spouses must pay to the other, the amounts that must be paid for maintenance in favor of the children and the adjudication of matrimonial assets to each of the spouses, due to the extinction of the matrimonial economic regime or because they were in undivided ordinary community. In the case of Catalonia, financial compensation for work must also be taken into account, in the case of marriages subject to the matrimonial regime of separation of property.

However, it is possible that within the separation or divorce the spouses reach other types of agreements, legally unrelated to the separation or divorce, but obviously very related to them, as would be the case of attribution to one of the spouses. of the vacation home that belonged to the other, or that was in the name of only one, but that had really been paid for by both.

Each of these facts has its own tax treatment, which we are going to analyze very briefly:

a) The compensatory pension.

This is an amount, normally money, that one spouse must pay the other, when the separation or divorce has produced an economic imbalance in relation to the position of the other, which implies a deterioration in their previous situation in marriage.

The pension may consist of a temporary or indefinite payment, or a single benefit, as determined in the regulatory agreement or in the judgment. And at any time the substitution of the fixed pension may be agreed by the constitution of a life annuity, the usufruct of certain assets or the delivery of capital in assets or money.

Well, for the spouse who receives the pension, the amounts obtained for this concept, in accordance with article 17.2 f) LIRPF are income from work, that is to say, fiscally they are considered as if it were a salary.

And for his part, the spouse who pays it may apply the reduction of the pension in the tax base of his income statement, provided that in no case may the tax base be negative as a result of the decrease.

Sometimes the recipients of the pension tend to avoid the inclusion of the compensatory pension, but it is something that on the other hand is very easy for the Treasury to detect, since the other spouse will have applied a reduction in their personal income tax and the Doing so must inform the ID of the beneficiary.

Returning to the subject at hand, the income tax law conditions the tax treatment to the fact that the pension has been subject to judicial approval or directly established by the judge. Well, the Provision that we have cited from Law 25/2015, has the consequence that the same treatment will have a pension when the separation or divorce has been formalized before a Notary or before the court clerk.

What is the best form of pension payment? Well, it will depend on the economic circumstances of each of the spouses, but we can point out that the way in which it is articulated, in installments, in a single payment, or by delivery of goods can influence the tax bill of each spouse and must be aspects to assess.

b) Child support

The spouse who does not receive custody must collaborate in the maintenance of the children, according to economic capacity. In the case of separations and divorces before a Notary Public, there may be alimony in favor of children of legal age or emancipated minors who lack their own income and live in the family home, who must give their consent.

Alimony in favor of children, for them, represents work income, but with a notable peculiarity regarding the treatment of the pension in favor of the spouse, since according to article 7 LIRPF, this income is considered exempt.

For its part, for the payer, the amounts disbursed will not be considered a deductible expense, nor will they reduce their impossible personal income tax base. As a tax benefit, the income that this payment entails has special treatment in article 64 of the LIRPF, which is very technical in content but can mean tax savings, especially for those with high incomes.

As we have pointed out with the subject of compensatory pension, the income tax law conditions the tax treatment of food that has been subject to judicial approval or directly established by the judge. Well, the Provision that we have cited from Law 25/2015, has the consequence that the same treatment will have a pension when the separation or divorce has been formalized before a Notary or before the court clerk.

c) The liquidation of the matrimonial property regime.

With the liquidation of the matrimonial regime, it is intended to distribute the assets that the spouses have acquired, jointly during the marriage. In the adjudication of goods, three types of taxes can derive, as happens in any other operation, on the one hand the income tax, the municipal capital gains tax and the property transfer tax.

Following this order, in the income tax First of all, we find the norm of article 33.2 LIRPF, which tells us that there is no alteration of the patrimony, b) In the dissolution of the joint venture or in the extinction of the matrimonial economic regime of participation. c) In the dissolution of community property or in cases of separation of community members; and that there is no capital gain: d) In the extinction of the matrimonial economic regime of separation of assets, when by legal imposition or judicial resolution compensation is produced, money or through the adjudication of goods, for reasons other than the compensatory pension between spouses.

With these two rules, whose wording, in the part that refers to the separation of assets, comes from Law 26/2014, we can affirm that all acts of liquidation of the matrimonial regime are not subject to income taxation, even in Catalonia, when there is monetary compensation, thus overcoming the doubts that the previous wording of the precept had generated.

And as we have been repeating, this treatment is independent of whether the divorce or separation was formalized before a Notary Public, Judge or Court Clerk.

The same happens in the case of the municipal surplus value because in accordance with article 104.3 of Royal Legislative Decree 2/2004, of March 5, which approves the consolidated text of the Law Regulating Local Treasuries, the subjection to tax will not occur in the cases of contributions of goods and rights made by the spouses to the conjugal partnership, adjudications that in their favor and in payment of them are verified and transmissions that are made to the spouses in payment of their common assets. Nor will the subjection to tax occur in cases of transfers of real estate between spouses or in favor of children, as a consequence of compliance with judgments in cases of annulment, separation or matrimonial divorce, regardless of the matrimonial property regime.

However in the case of property transfer tax, it is necessary to differentiate the applicable matrimonial economic regime, since it changes notably if we are in the case of the property regime or more broadly of community or in the regime of separation of property.

The property transfer tax law declares exempt the contributions of goods and rights verified by the spouses to the conjugal partnership, the adjudications that in their favor and in payment of the same are verified at their dissolution and the transmissions that are made for such cause to the spouses in payment of their assets.

The Supreme Court Judgment (3rd Chamber, 2nd Section) of April 30, 2010 establishes the following doctrine on the application of this exemption to property separation regimes:

"In the event of adjudications and transmissions caused by the dissolution of marriage, and provided for in article 45.IB) 3 of Legislative RD 1/1993, which approves the Consolidated Text of the Law on Property Transfer Tax and Documented Legal Acts, the tax exemption is only applicable to dissolutions in which there is an effective community of property (marital partnership); Therefore, this exemption is not applicable to cases in which a matrimonial economic regime of separation of property governs”.

In other words, if there is a separation of property, referring specifically to Catalonia, if as a consequence of the separation and divorce, and being acts of liquidation of the matrimonial regime, there can be deliveries of property between the spouses, which derive from the fact that they were in property undivided or as payment of compensation for work, which one of them must pay to the other.

In the case of assets that were undivided, there should not be any type of taxation for patrimonial transfers, except that some excess allocation may be revealed, which when it affects an indivisible asset or the habitual residence, would not be taxed; In the case of the adjudication of assets in payment of compensation for work, the General Directorate of Taxes of the Generalitat de Catalunya, in various consultations, has indicated that they are taxed as an adjudication in payment of debt assumption, that is, at 10% of the amount of the awarded property.

Everything that we have mentioned up to now, regarding the liquidation of the matrimonial regime is independent of the way of carrying out the separation or divorce.

However, we have one last nuance, because in the case of separation of assets, despite the fact that excess allocations may be exempt when the habitual residence or an indivisible asset is attributed to a spouse, there will be a notable difference between the treatment tax depending on whether the separation or divorce is carried out before a Notary Public, or before the Judge or court clerk.

 That difference is the taxation of notarial documents by the gradual quota of the documented legal acts tax.

This is a tax levied on the first copies of deeds and notarial deeds, when their object is quantity or a valuable thing, contain acts or contracts that can be registered in the Registries of Property, Mercantile, Industrial Property and Personal Property not subject to to Inheritance and Gift Tax or to the concepts of "Patrimonial Transfers" or "Company Operations". The rate will be the one set by the Autonomous Community, and if it had not approved the rate, 0.50 per 100 will be applied. Of course, all communities have raised this rate and in the case of Catalonia we are at 1.5% (that is, say a 300% more).

The application of this tax does not derive from the divorce itself, to refer to the subject at hand, but from the form of documentation of the same, and therefore affecting only notarial documents, there is a differentiated treatment when the divorce is processed before a Notary Public or before another authority, the regime is that of separation of assets and real estate is awarded to the spouses, because only if it is processed before a notary is the tax accrued.

This is an issue that should be assessed by those who wish to get divorced, but in my opinion it should be the subject of reflection, by the State, on the one hand, the discrimination that means for the Notary Public that his work is taxed with a tax that other legal operators do not support and on the other hand, the very function of the documented legal acts tax within the Spanish tax system.

Would someone understand that two companies, for example two sports stores, one had a different tax on its sales than the other. Let's imagine that for being on the even number of the street a store has to charge a VAT of 21% and for being on the odd number a VAT of 18%. Well, something very similar is what happens between notarial and judicial documents when the divorce is formalized..

Remember that the Lagares report was very critical of the tax on documented legal acts. Let us hope that this matter will make us reflect on who should make the decisions, and that a tax that is only levied, in many cases, on the lack of economic capacity will end.

Reform of October 19, 2016. Fortunately, this situation has changed in Catalonia, by law of October 19, 2016, a bonus is included in the 100% fee in the deeds of separation or divorce or termination of a stable union granted by Mutual agreement between the parties.

d) The other facts

Finally, note that the other economic facts that are manifested in a divorce, different from the previous ones, will be applied to the general taxation rules, for which it may be very convenient to carry out operations, before divorce, but as a form of preparation. of the same. Donations between spouses usually have a beneficial tax treatment (which depends on the autonomous communities), but although it seems obvious, you are a spouse until divorce.

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