Legal

Irpf nuda propiedad y usufructo

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Income tax return

It is normal that when we think about housing, we handle two basic concepts, the sale or the transfer of the same one, but the truth is that there are other forms of «unfolding» the property of a house and with it to generate new forms of use and benefits, both personal and economic. We refer to the bare ownership and the usufruct, in which we must consider the taxation associated with these concepts.
The bare ownership of a real estate property is the property right of a holder who lacks the usufruct on such property. That is to say, the bare ownership of a property does not have the use and enjoyment of the same one, but those rights are yielded to a third party, so that the bare owner will not be able to fully enjoy the property until the usufruct is extinguished, moment in which it will happen to be full owner of the property.
The bare ownership and the usufruct are different rights, even though they apply to the same property. To possess the bare ownership of a thing is to be the holder of the good, but without being able to enjoy it nor to exploit it to obtain economic benefits. While the usufruct is the right to use and enjoy the property, including the economic exploitation of the same.

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The Nuda Propiedad and the Usufruct are different rights, although they fall on the same property. Thus, the Full Dominion of a thing will have when Usufruct and Nuda Propiedad coincide in the same holder.
Nowadays it is very frequent that owners, mostly elderly people, who usually do not have heirs or need economic resources, are willing to sell the Nuda Propiedad and keep the Usufruct for Life of the property. This ensures that they will be able to use the property during their lifetime, and they also receive the economic compensation for the bare property, which they have sold.
The usufruct can be constituted for a definite period of time or for life. Given that we are generally talking about elderly people who sell the bare property of their home, the most usual thing is that the former owner enjoys the usufruct until his death.

Cancellation of usufruct taxes

It usually happens that at the time of making a will in some disposition it is established that the usufruct of certain goods is reserved for a person different from the one who is going to hold the property. The most frequent case is to leave the usufruct of the habitual residence or of more real estate to the other spouse and to grant the bare ownership to the heirs, generally, to the children of the testator. In this way, what is being done is the separation or dismemberment of two different rights over the same property: the usufruct and the bare ownership.
The usufruct allows its holder to have the right to use the property and keep it as if it were his own, and this right can be temporary or for life. On the other hand, the nuda propiedad grants the dominion of the property but without being able to use or enjoy it until the end of the right of usufruct.
When both rights are separated by means of an act during life and in which nothing is received in exchange, the taxation is very similar to the previous case. Whoever acquires the right (either the usufruct or the bare ownership) will have to pay Inheritance and Gift Tax applying the valuation rules set out above. In the same way, if the property object of the transaction is an urban property, municipal capital gains tax must be paid for the right obtained over it.

Personal income tax regulation

One of the widespread doubts among taxpayers is related to the usufruct on real estate and its difference with what is known as the bare owner. In the first place, as the Civil Code highlights between articles 467 and 522, the usufruct is a right that grants the right to use, enjoy and take advantage of another’s property without altering its form or substance, in this sense, the usufructuary person can enjoy a certain property for a specific period of time or for life for private use or to obtain an economic return, but cannot transmit it because he does not hold the ownership, that is, the bare owner.