Although since January 1, 2013 it is not possible to enjoy the deduction for investment in housing, the truth is that there are still many taxpayers who each year apply this deduction in the IRPF. But the situation may change in case of divorce of a married couple who acquired their habitual residence jointly before 2013. Fortunately, the Central Economic-Administrative Court (TEAC) considers that the one who keeps the house can apply the deduction for the payment of the entire mortgage.
The case resolved is that of a married couple who bought the house jointly by mortgage before 2013, with which they could enjoy the deduction for home purchase, but who recently divorced. The former spouse who keeps the house wants to know if he/she can continue to enjoy this tax benefit. The Treasury’s response was to question the application of the deduction on the grounds that part of the house (50%) was acquired before January 1, 2013, but that the remaining 50% had been purchased later and after the marital breakup.
In short, the Treasury denied the application of the deduction on the 50% purchased after the divorce (years after the end of the deduction for home purchase). However, the TEAC has resolved the case in favor of the taxpayers, as echoed by Alfonso Soler, partner of the firm CLF International Lawyers. The case resolved is that of a married couple who bought their primary residence in 2006, with which they were able to apply the deduction for their primary residence, until July 2013, when this tax benefit disappeared, when they divorced.
The TEAC considers that the former spouse who keeps the house can continue to enjoy this tax benefit for several reasons: first, because the house was purchased in 2006, regardless of whether it was shared, and that the former spouse who keeps the house has remained in the property for a period of at least three years.
Secondly, the TEAC explains that «there is also no doubt about the fulfillment of the requirement of having taken the deduction for investment in the principal residence in relation to the amounts paid for the acquisition or construction of said home in a tax period accrued prior to January 1, 2013, since it is a matter of course that Mrs. Z exercised her right to the deduction since its acquisition in 2006.
Given that, as we have pointed out, the first requirement of the DT 18ª of the LIRPF allows the taxpayer to have acquired before January 1, 2013 a percentage of less than 100% of the ownership of the home, provided that this constitutes his or her habitual residence, it will suffice to meet the second requirement that Mrs. Z has practiced the deduction, in a tax period prior to that date, in relation to the amounts paid for the acquisition of the 50% percentage of the habitual residence , which is the percentage acquired by her in 2006.»
«In short, the TEAC opens the door to taxpayers who acquire the remaining 50% of the property, after an extinction of community carried out from 1-1-2013, can apply, also in relation to that part, the deduction in habitual residence in case of divorce», says the lawyer Salcedo.
The criterion set by the TEAC says that, in case of extinction of a condominium on the habitual residence as from January 1, 2013, if one of the parties obtains 100% of the home, it will be entitled to apply 100% of the deduction for acquisition of habitual residence as long as it had been applied in a fiscal year prior to 2013 said deduction in the percentage corresponding to its participation in the condominium.
The deduction to be applied for the part acquired until completing 100% of the full ownership of the property will be limited to the amount that would have been entitled to be deducted from the date of extinction of the condominium by the co-owner who ceases to be the owner of the property, if such extinction had not taken place.
How to claim the deduction not applied
Alfonso Soler emphasizes that this resolution opens the door for taxpayers to apply the deduction for investment in housing with respect to the totality of the same. And this, regardless of whether part of it was acquired before 1-1-2013, and the rest now, after an extinction of condominium.
«In addition, the resolution will allow those taxpayers who are in this situation, and had not applied the deduction in recent years, to request the rectification of the self-assessments presented, and the refund of undue income», sentence.