PARTICULARIDADES DE LA FISCALIDAD DE LA DACIÓN DE INMUEBLES EN PAGO DE DEUDAS: CONSECUENCIAS TÉCNICAS PARA LOS SUJETOS ACTIVO Y PASIVO DEL DERECHO DE CRÉDITO GARANTIZADO CON HIPOTECA IMPAGADO.

Abstract

The fragile economic situation of many Spanish homes makes a revision of traditional mortgage foreclosure conditions advisable. The central figure on today's financial stage is surrender of the mortgaged property when there are no other means of paying off the loan. As a transaction, surrender in lieu of payment entails a series of implications in regard to both direct national taxes and indirect taxes, not to mention city taxes. The recent approval of Royal Decree-Law 6/2012 of 9 March on urgent measures for the protection of indigent mortgage loan holders introduces a series of tax advantages for those taxpayers who stand on the exclusion threshold. In all other cases, however, it still needs to be determined whether the tax authorities can treat surrender in lieu of payment the same as asset swaps. If the tax authorities are to treat the transaction properly (to avoid simulation and tax mitigation stemming from an incorrect definition of the legal act), determining the legal act in question is a basic issue.