With the publication of Royal Decree Law 1 / 2017, 20 January of urgent measures to protect consumers in respect of "floor clauses" Finance has also regulated the tax treatment of the return of the ground clauseEither by agreement with the financial institution or arising from the execution or enforcement of judgments or arbitral awards.

Generally amounts returned, they will not be included in the taxable income, but if the amounts recovered had been part of the base of the deduction for investment in residence right exercised in non-prescribed exercises, gets lost and must join the net tax payable for the year in which the agreement is reached or with the judgment but not interest for late payment.

This inclusion will not apply in respect of amounts that are directly targeted, according to the financial institution, to lessen the loan principal.

If instead of being part of the base of the deduction for investment in housing, the amounts refunded would have had the character deductible as an expense in the determination of net income from real estate or economic activities, exercises no prescribed is they should make supplementary declarations without penalty or default interest or fee whatsoever. The deadline for submission of these supplementary declarations starts counting at the date of settlement, judgment or award, and reaches the end of next deadline for submission of tax return of income tax.

Finally, mention should be made of the amounts received as interest calculated on the amounts incorrectly collected by the bank. In this regard the drafting of the Royal Decree is not entirely clear, but if the doctrine of the Directorate General of Taxes is taken into account, the amounts received by the return of clause floorIn respect of interest charged on the amounts incorrectly charged by the bank, they will be taxed as capital gain integrated into the savings tax base to be considered compensatory.

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Francisco Soto Dig advocats

Francisco J. Soto

Tax Department