Regular legal-contributor Raymundo Larraín Nesbitt explains the taxes a vendor faces on selling a Spanish property.
By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of December 2014
A seller can expect to pay, by law, two taxes:
I. Capital Gains Tax (or CGT for short) and
II. Plusvalía Tax.
However it can be agreed in practice, and frequently is, that a buyer pays for Plusvalía tax. Confusingly you may find that some articles refer to both taxes as if they were one and the same; they muddle plusvalía municipal (town hall tax) with plusvalía fiscal (which is Capital Gains Tax in English). Needless to say this is a glaring mistake as they are two distinct taxes; the former is paid to the town hall where the property being sold is located and the latter to the state (whether as Personal Income Tax or Non-Resident Income Tax dependent on the taxpayer’s residency status).
Following new regulation, a seller may be required to produce an Energy Performance Certificate (couple of hundred euros) in addition to CGT and Plusvalía Tax.
The Spanish Government published in the Official Law Gazette (BOE) last Friday 28th of November a set of new tax laws which will impact on a seller’s taxation. Law 26/2014 amends both Personal Income Tax (IRPF) and Non-Resident Income Tax (IRNR). These changes will come into force as from the 1st of January 2015.
If you own property purchased before the 31st of December 1994, and plan to sell soon, you may want to take tax advice before the new rules kick in as from the 1st of January 2015. You stand to pay a much larger capital gains tax bill as a result of these changes. It may be in your best (fiscal) interests to sell ahead in 2014 in lieu of 2015. You can read further on these fiscal changes on following this link: New Fiscal Laws Will Hammer Some Property Vendors.
I had already covered in detail the taxes to be paid by a buyer in my articles Taxes on Buying Spanish Property and How to Buy Property in Spain Safely (which includes in-depth coverage on buying off-plan and resale among many other property types).
Capital gains is paid by residents of Spain on their worldwide assets and by non-residents on property that they own in Spain. Special attention has to be made on whether one holds resident or non-resident status as reliefs and allowances differ depending on the case. I highlight in each section below which applies.
CGT can be defined as the tax applicable on the profit you make on selling an asset (art.33 IRPF).
I stress it is the profit that is taxed (the gains), not the amount of money you receive.
2.- Capital Gains Tax Rates (for Non-Residents in Spain)
In general, 24% for non EEA/EU-residents.
For E.E.A. and EU-residents the newly enacted tax laws progressively reduce CGT’s burden as follows:
• Up to 31st December 2014: 21%.
• As from 1st of January 2015 till end of 2015: 20%.
• As from 1st January 2016 onwards: 19%.
This amendment, from last week, is welcome news as only a few years ago CGT was a whopping flat rate of 35% for non-residents. The Spanish government, nudged by the ECJ’s landmark ruling of 3rd of September 2014, has decreased CGT to bring it on par with residents.
3.- CGT Mitigation
A seller can mitigate, within legality, the profit figure on selling to reduce his capital gains tax liability. This can be achieved threefold:
a) Abatement Coefficients: Reductions Relating to when the Property was Purchased
Depending on when the property was purchased abatement coefficients kick in reducing the taxable base by a given percentage on an annual basis. Unfortunately, after the new set of laws was passed last week, this has been partially scrapped as from the 1st of January 2015. You can read further following this link.
Notwithstanding it still applies to properties bought before the 31st December of 1994 with a capped limit of €400,000. This is a one-time credit, meaning it may be used only once. You can however use it across multiple sales providing the total sales value is below the €400,000 threshold (i.e. two property sales of 200k each). Any amount over and above will not benefit from it.
b) Indexation Allowances: Reduction on Inflationary Movements (Inflation Relief)
This allowance used to give relief for the effects of inflation in computing gains over time. This correction factor brought property values in line with today’s inflation. This has now been scrapped as from the 1st of January 2015.
c) Expenses to be Offset
Art 35.3 IRPF. These can be divided into two subgroups (purchase and refurbishment expenses):
I.- Purchase Expenses
For further details please read my article Taxes on Buying Spanish Property. All expenses incurred on buying a property can be offset, such as:
• Lawyer’s fees.
• Notary’s fees.
• Land Registry’s fees.
• Plusvalía Tax (only if it was agreed the buyer paid it)
• Estate Agent’s commission (the norm is that a seller pays it but can be agreed otherwise in which case a seller could offset it).
On average, purchase costs add 10 – 15% over and above the purchase price. As we can see a great amount can be offset against the CGT bill on selling if done correctly. Original invoices (hard copies) must be kept for all the above as prove for the Tax Office. Your appointed lawyer will of course pre-empt this by submitting them beforehand to streamline the procedure and save time.
II.- Refurbishment Expenses
Remember that expensive parquet you brought all the way from Bali at your wife’s behest? Well you can now offset all major refurbishments costs against your CGT liability so as to reduce as much as possible the profit. Any extensions or improvements done to a property can be deducted. Do not confuse these with ongoing annual maintenance costs which are not tax deductible. In practice it may prove tricky to distinguish one from the other. Remember to keep hard copies of all the licences and invoices for justification purposes.
• Examples of deductible costs: glass curtains, double-glazed windows, parquet, marble floor, extension to property (outbuilding), tennis court, swimming pool, private lift.
• Examples of non-deductible costs: repainting over flaky paint, plumbing, debugging, tennis court green mold cleaning, swimming pool pump replacement, annual lift maintenance.
Word of Advice.
Needless to say, it can be surmised from both subgroups above that all invoices from professionals must have VAT on them. Do NOT supply to the Tax Office ‘invoices’ which lack VAT. You don’t want new problems. So when you are asked in Spanish by a builder or professional: “Con o sin factura?” (With or without invoice?) you always kindly reply: “con factura, por favor” (with VAT, please).
You only shoot yourself in the foot by trying to play ‘smart’ and avoid paying VAT (not to mention it is illegal) as these purchase and/or refurbishment invoices can be deducted in full on selling your property in the future. Planning ahead is key for success.
4.- Under-Declaring on Buying Property – Unadvisable Besides Illegal
Besides being illegal it is on selling your property when you lose big time.
The money you failed to declare on buying so as to save yourself one-digit in VAT or Property Transfer Tax, depending on whether you purchased Off-Plan or Resale property, comes back to bite you on selling.
Why? Because now the tax man believes you have made a larger profit (defined as the difference between the price you buy and sell) than what you actually did. And this ‘greater’ profit is now taxed at two-digits!
We can see it with a simplified example.
An off-plan property is acquired in 2005 for €250,000. The buyer (illegally) under-declares it by €50,000; ‘officially’, in Deeds or ‘escritura’, it shows as €200,000. The buyer saved himself 7% VAT on €50,000 which amounts to €3,500.
The buyer then decides to sell it in 2014 for €260,000 (figure in sales Deeds).
From a tax man’s perspective, the seller made a ‘profit’ of €60,000 (260 thousand less 200 thousand declared) when in reality he only made €10,000 (260,000 less the real 250,000). The seller is taxed 21% on the difference, which is €12,600 (21% of €60,000).
So basically the seller tried to save himself €3,500 on VAT in 2005 and nine years later, in 2014, he ends up over-paying €12,600 in taxes which practically negates his meagre profit of €10,000.
Following on the above, the seller has effectively over-paid €7,000 in tax. This is the difference between what he paid as CGT in 2014 (€12,600) and what he should have paid legally for both VAT in 2005 (€3,500) and CGT in 2014 (€2,100) had he come clean and declared the real purchase and sales price. The seller has wiped out in the process his profit margin. Not to mention you can get caught under-declaring leading to new problems. Not a smart move any way you look at it.
Bottom line, do not under-declare on buying property as you stand to lose money (on over-paying taxes when you come to sell later on). Besides, under-declaring is illegal.
5.- Non-Residents: 3% Withholding Retention on Selling
As a security measure, and to ensure taxes are complied with, a retention of 3% is practiced at completion on account of a non-resident vendor’s CGT liability. The obvious risk a non-resident poses is that they are bound to leave the country soon after the sale raising a question mark on their tax compliance. To avoid such a scenario unfolding, a buyer’s lawyer is forced – under law – to withhold 3% of the agreed sales price and pay it into the Spanish Tax Office (AEAT). The Notary public witnessing the sale will ensure this is carried out. You can read further on this retention on following this link.
Two scenarios unfold dependent on the profit made:
1. If a vendor has made a profit smaller than said retention then he is entitled to claim back the difference for which there is a deadline (three months). A vendor will require a lawyer’s service to claim back this money as it is not a straightforward procedure. A refund is taking on average several months (twelve to eighteen), a number of pre-booked visits to the Tax Office and compliance with tax models (211 from the buyer and 210 for the seller) which need to be meticulously completed so as to avoid the Tax Office giving any excuse to hand back the retention or part of.
During this time the Tax Office will be actively liaising with the appointed fiscal representative at the registered Spanish address set for communication purposes (i.e. they may require further documents are supplied). Which is yet another reason why non-residents should appoint a Spanish-based law firm to handle this refund as only a Spanish address will be accepted for communication purposes.
2. If the profit exceeds the 3% retention, a non-resident will be expected to pay the remainder within three months of the sale.
Additionally, on selling, if a seller owes property-related taxes (see my article Non-Resident Taxes in Spain) the 3% retention withheld by a buyer by law (on account of a non-resident seller’s Capital Gains Tax liability) will be used to offset any owed tax by a non-resident seller (tax models 211 and 210). Do NOT expect the Tax Office to refund you the difference on the 3%; if you owe property taxes the tax authorities will pocket the full 3%. To avoid this you must first pay in advance the owed property tax (up to the last 4 years, as the statute of limitation time-bars any tax exceeding the four-year limit) plus any penalties or surcharges for late payment. Only once the outstanding property tax is settled, will they refund you the 3% withheld in full.
6.- Selling at a Loss (No Profit)
Today’s market is exceptionally tough for sellers. Vendor’s frequently sell at a loss so as to secure the quick sale of a property. It may come as a surprise when the Spanish Tax Office then tries to tax CGT when in reality there has been no profit.
The AEAT calculates the value of a property following rateable values. It is their understanding there is always some profit to be made on selling and any attempt to ‘conceal’ it may be taken as under-declaring; which of course is not the case for most sellers nowadays. Regardless you will be expected to pay CGT on selling (at a loss).
7. Fiscal Novelty Law 26/2014: Over 65-Year-Old Residents
Any capital gains made by resident taxpayers over 65-years-old will go untaxed (art. 24 Law 26/2014) when the sales proceeds are:
1. Reinvested in pension annuities.
2. Maximum of €240,000.
3. Six-month deadline.
This is in addition to the below main home tax relief.
8. Residents: Main Home Tax Relief if Over 65 (Absolute Relief)
Over 65-years-old residents are CGT exempt on selling their main abode (‘vivienda habitual’). Art 33.4b IRPF and 41 RIRPF.
9. Residents: Main Home Tax Relief if Under 65 (Rollover Relief)
Just a quick reminder that art 38.1 IRPF allows a resident seller to be CGT exempt on selling their main home providing the following conditions are met:
1. The seller must be resident in Spain.
2. The dwelling must be his main home (must have dwelled in it permanently for the three previous years art. 41 bis RIRPF). It may be less than three years in certain personal circumstances when the taxpayer was forced to change home as a result of job change, marriage or separation.
3. The sales proceeds are reinvested in acquiring a new main home (in Spain or else in the EEA/EU). Any part of the sales proceeds not reinvested will be taxed pro rata.
4. Deadline of two years to reinvest the sales proceeds (in a new main home).
5. This rule applies to under sixty-five year-olds.
Is a local tax levied by the town hall where the property is located. Please read the Plusvalía municipal tax in Spain for more details.
Plusvalía is a tax levied on the increase of value of the land from the date the owner acquired the property to the time of the present sale.
In Spanish, ‘Impuesto Municipal sobre el Incremento del Valor de los Terrenos de Naturaleza Urbana‘ (or simply ‘plusvalía municipal‘).
2.- Local Tax
This tax is a devolved (tax) competency to local authorities. Every town hall has competence to determine its own applicable rates within a scale. I cannot supply a chart with on-going rates as it varies significantly from one town hall to the next and is case-dependent. Lawyers need to liaise with the town hall where the property to be sold is located to obtain a final figure for the day of completion.
The tax is calculated on following both the rateable values of property and the number of years it has been in the possession of an owner (until the time of sale).
In most cases it is not significant, usually amounting to less than €1,000 but can be more in the case of villas with large plots of land.
Taxation on Selling Spanish Property – Conclusion
In my experience the Spanish Tax Office (AEAT) would seem to struggle understanding sellers’ plight on selling at a loss in today’s market. Don’t be surprised if, despite making a loss, you are still found liable to pay CGT by the ‘Agencia Tributaria’. And by the same token buyers are requested extra tax on buying under valued property as I explain in my article La Complementaria or Bargain Hunter Tax; they are two sides of the same coin.
Planning ahead is key to mitigate tax exposure on selling Spanish property. I strongly advise a seller hires a lawyer; with even more reason if non-resident. This ensures a seller complies in full with Spain’s tax laws and, given the case, may even opt for a refund on the retention (or part thereof) practiced at completion before a Notary Public. I remind the three per cent withholding retention only applies to non-residents on selling.
“If you fail to plan, you plan to fail” – Benjamin Franklin.
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Legal services Larraín Nesbitt Lawyers can offer you
Capital Gains Tax – Advice by the Spanish Tax Office (Agencia Tributaria or AEAT)
How to Buy Property in Spain – Advice by the Foreign & Commonwealth Office
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