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How the capital gain has changed in the sale of real estate

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Ali Khan
How the capital gain has changed in the sale of real estate

Introduction


On November 10, 2021, Royal Decree-Law 26/2021 came into force, the echoes of which still resonate in the municipalities of Spain due to the novelties introduced in the municipal capital gains. This tax usually generates a lot of income for local administrations, and the legislative change is emerging as a turning point in this trend.

  

WHAT IS CAPITAL GAINS TAX?


Also known as the Tax on the Increase in the Value of Urban Land, the municipal capital gain is a tax that levies the increase in the value of urban land during the time during which it has remained in the property of a taxpayer.


The taxable event of this tax is the actual transfer of the property, that is, when the owner decides to sell the property or land in question, or when it is received as part of an inheritance or donation.

The complete definition of capital gains tax can be found in the text of the Local Treasury Law. In order for the tax to be applied, the value of the property has necessarily had to increase from the time of acquisition to the time of transfer.


CHANGES IN GOODWILL


It is precisely the condition of accrediting the increase in the value of the property over time that has been at the center of the controversy. Before this change, a ruling of the Constitutional Court of May 11, 2017, had already questioned the constitutionality of some provisions of the Law of Local Treasury.

The coup de grâce was dealt by this other judgment of the TC of October 26, 2021, where the nullity of the capital gains tax calculation method was declared, which gave rise to the legislative change mentioned at the beginning.


The main novelty introduced in the legislation consists of proposing a scenario of two options to calculate the tax liability, so that the taxpayer applies the one that is most beneficial.


On the one hand, it is proposed to multiply the cadastral value by new coefficients, designed to better adjust to real estate reality, and likely to be updated in successive General State Budgets.


On the other hand, there is the option of calculating the real profit resulting from the difference between the sale price and the purchase price of the home. If the taxpayer did not obtain any capital gain from the sale of the home, he would be exempt from paying the tax.


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The municipalities will have a margin of 15% to correct downwards the cadastral values ​​of the land depending on their degree of updating, precisely to always guarantee the adequacy of the tax to the real estate reality in each locality and.


HOW DOES THE CHANGE IN CAPITAL GAIN AFFECT THE SALE OF REAL ESTATE?

The new calculation methods give disparate results depending on the time elapsed between the acquisition and the transfer of the property or land. The online real estate agency Doctor Property helps and advises individuals at all times in the process of selling real estate.


For example, owners who buy and sell within a period of less than a year will be the most affected, since the legislative amendment aims to penalize merely speculative real estate operations.

On the contrary, owners who acquired their properties in the midst of the bursting of the real estate bubble are expected to pay a lower tax, precisely because such a scenario is considered "not representative" of the reality of the real estate market.


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