When the usufructuary dies, the beneficiaries must liquidate the consolidation of ownership rights created by the termination of usufruct. The heirs who acquired bare ownership at the time become full beneficiaries after the death of the usufructuary. This transition is called consolidation of ownership.
Inheritance tax must be paid on the consolidation of the property right due to termination of usufruct. A declaration must be made of the consolidation of the property right in favour of the bare ownership holder as a result of the termination of a usufruct established through a transfer without compensation (succession or donation).
If the distribution of ownership has been achieved through a transfer for consideration, the consolidation falls under the Tax on Transfers of Assets and Documented Legal Transactions (ITPyAJD in Spanish).
In other words, if the bare owner has acquired bare ownership of the property through a purchase agreement, he or she will owe ITPyAJD.
If the bare owner got the bare ownership of the property for free, he or she is liable to pay Inheritance and Gift Tax (ISD in Spanish) in case of inheritance or gift.
However, in both cases, at the time of acquisition of bare ownership, no
tax to be paid on the total value of the real estate, but only on the value of the bare ownership. So you do not pay tax on the value of the usufruct, even if the usufructuary did.
The moment the usufructuary dies and the usufruct is cancelled, the bare owner officially becomes the full owner of the immovable property. Therefore, he or she must now pay tax for acquiring full ownership, i.e. on the value that the usufruct had.
Thus, the owner who consolidates his or her property due to termination of usufruct pays the same tax as when he or she acquired bare ownership, even in case of death.
If he or she acquired bare ownership of the immovable property through a purchase agreement, upon the death of the usufructuary, he or she should pay ITPyAJD as described above, paying special attention to the following rules:
• The amount on which ITPyAJD is payable is the percentage of the value that, at the time of acquisition of bare ownership, was attributed to usufruct.
• This percentage should be applied to the value of the property on the date of death. • The ITPyAJD is paid at the rate prevailing at the time of death.
If you acquired bare ownership through inheritance or gift, you should pay ISD on the death of the usufructuary, subject to the following:
• You pay tax on the value of the usufruct at the time of acquisition of the property. • When paying the tax, you should apply the average tax rate you paid when you acquired the bare property.
• On termination of usufruct, you should take into account the value of the property at the time the usufruct was established, the average applicable rate and the discounts in force on the establishment date.
• If not all discounts have been applied at the time of establishment, you can apply the remaining amount when you declare the termination of usufruct.
If the usufruct is terminated due to the death of the usufructuary, a period of six months applies for the tax return, counting from the date of death, which is also the inheritance date. In all other cases, a period of 30 working days will apply from the day following that on which the usufruct was terminated.
Note: The content of this article is purely informative. Each case should be studied individually, taking into account the regulations in force at the time.
Don’t take risks, always contact a lawyer. All practising lawyers in Spain must be registered with a Bar Association. For your safety, you can check this at: https://www.abogacia.es/ servicios…/censo-de-letrados/
Nathalie Zanolie
Lawyer (registered with the Tenerife Bar Association with registration number 3.033 – Ilustre Colegio de Abogados de Santa Cruz de Tenerife ICATF).
htths://advocate-tenerife.com
https://www.facebook.com/advocaattenerifenathaliezanolie/
Glossary of this month’s article Usufructo:
usufructuary
Nuda propiedad: bare ownership
Consolidación de dominio: consolidation of ownership Impuesto: tax
Herencia: inheritance
Donación: donation
