Taxation of amounts returned by floor clauses
Customers who receive their refunds of floor clauses may have to pay for them, depending on the deductions applied at the time.
The amounts received for the return of the floor clauses may be taxed, depending on the deductions applied at the time. The system of taxation of these amounts can be complex, so that has been developed through consultations of the taxpayers to the Directorate General for Taxes (DGT).
Following the acceptance of the total retroactivity of the floor clauses by the European Court of Justice (CJEU), and in the face of the avalanche of expected legal claims, the government has agreed on a new extrajudicial system (which hopes to approve 19 January in the Council of Ministers) for the return of amounts unduly paid to the client within a maximum period of three months.
In principle, if the bank returns to the client the amounts of the interest that they have paid more for a mortgage loan annulled by floor clause, this will not mean for the latter neither return nor equity gain, since Hacienda considers them “only a rental application “. In this case, no further adjustment or declaration shall be made. This is the general assumption, applicable only in the case that they have not been deducted either as income from real estate capital or as income from economic activities.
Otherwise, these amounts could cause changes in the income tax return, but to whom?
– Those who were deducted as expenses in the net return on real estate capital by rent.
– Those who were deducted as expenses in the net return of economic activities.
– Those who were deducted as usual (including taxpayer expenses on demand).
This, for fiscal purposes, implies that the customer (and taxpayer) must declare to the Treasury the amounts received as follows, according to binding consultation DGT V2429-16:
- In the case of quantities of the floor clauses: if they have been deducted by the concept of purchase of habitual residence, the right to deduction of the amounts returned will be lost. In such a case, that amount must be added to the net IRPF share corresponding to the year in which the judgment was handed down, together with the interest charged on late payment.
- The savings as equity gain and tax at 19%.
A) If this amount has been charged as a deductible expense as a return on real estate capital, you will be required to file a supplemental income tax return.
B) If this amount has been deducted as an economic activity, the statement must be rectified only for the year in which judgment was given, not the previous ones, by submitting a letter of rectification.
The government should enforce the judgment of the CJEU on floor clauses as quickly and effectively as possible without entering into subterfuges that delay compliance with the judgment or even denature it.
In Del Canto Chambers we are specialized in tax and commercial law, specifically, in the resolution of tax claims before the Treasury. You can contact us at clerk@delcantochambers.com and at our platform www.spanishbank.co.uk
Claudio Rodríguez Vera (@rvclaudio)
Attorney at Del Canto Chambers
