Many of us are not aware of how the Inheritance Tax (IHT) process works in Spain and therefore we do not know the amount that our beneficiaries may have to pay when receiving an Inheritance or a Donation.
The amount to be paid will depend to a great extend on facts such as:
1.) Place of residence of the deceased.
2.) Place of residence of the beneficiaries or of those receiving the Inheritance or donation.
3.) Family bonds between the deceased and the heir.
4.) Nature of the assets, etc.
This can be even more difficult, when we take into consideration that the Inheritance and Donations in Spain, can be subject to either an Estate Tax or an Autonomous Community Tax, and being the tax rules of each community really different between them, the amount to be paid, can vary extremely depending of the tax law applicable to each case.
In principle we can say that the general rule is the following:
1.-For Successions (Inheritance) the tax rules to be applied will be those of the Community ((Comunidad Autonoma) where the deceased had his habitual Residence which is determined in Law 22/2009 of December 18th, as the territory where the deceased remained the greatest number of days during the past 5 years before the Death.
2.- In the case of Donations, the tax rules to be applied will be those of the Community (Comunidad Autonoma) where the beneficiary (recipient of the donation) has his habitual Residence similar to the above specified.
Needs to be highlighted that in those cases where The Valencian Community rules / regulations are to be applied an important bonus of 99% on the Inheritance Tax (IHT) is foreseen for those beneficiaries who have their residence in the Valencian Community, as long as they are ascendants, descendants or spouse of the deceased.
Thus in the hypothetical case of a man who lived in Denia during 10 years and passed away, leaving his two sons as beneficiaries (one son with residence in Denia and the other with residence in Madrid); the son who lives in Denia would pay almost no Inheritance Tax due to the mentioned bonus of 99% for those heirs living in the Valencian Community). On the other hand the son with residence in Madrid cannot enjoy this bonus and could end up paying a very high amount depending of course on the value of the assets to be inherited.
In the above mentioned case, a suitable legal and tax advice to the father (while still alive) is most important and convenient, as it could help in solving this discriminatory situation for the son living in Madrid by making a donation to his son. The applicable Law for donations (in general) clearly specifies that the tax to be paid will depend on the place of residence of the recipient (beneficiary) of the donation, and the fiscal Law of Madrid foresees a similar bonus of 99% tax for donations between parents and children.
It is therefore very useful to consider each situation individually, the personal and family circumstances of each case, with the purpose of establishing the appropriate strategy that will minimize Inheritance Tax and thus not cause any harm to our future beneficiaries.
Should any reader find himself or herself in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
White & Baos
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