Why should an additional tax be paid for receiving money in inheritance for which the deceased already paid taxes? Many people ask that question and They decide to jump into the mountains (prosecutor) trying a thousand and one tricks to avoid payment of the Donations and Inheritance Tax. The most common trick is to empty bank accounts of the family member before he or she dies. Spoiler: it goes wrong.
A solved case by the Superior Court of Justice of Madrid shows that this belief can be very expensive, and that the attempt to avoid the treasury can end up exactly where one wanted to avoid arriving: paying the Treasury even more than what they would have paid in the beginning.
Money, what money? A woman was listed as the owner or authorized person on several of her sister’s bank accounts. In September 2017, this died without leaving a will. When the General Directorate of Taxes of the Community of Madrid began to investigate the case, it found that the deceased’s assets were much larger than what her sister wanted to make out.
As of December 31, 2016, the three bank accounts of the deceased accumulated considerable balances: one with 9,217.08 euros, another with 51,216.58 euros and a third with 132,644.53 euros, in which the sister appeared directly as joint owner. In addition to these savings, the deceased had received 45,000 euros in April 2017 for the sale of her part of a property that she shared with her sister.
By December 31, 2017, all the money in the accounts was gone. The Treasury calculated that the total money and assets that should have been declared in the inheritance amounted to 122,931.67 euros, to which was added the value of 50% of a property in Hoyo de Manzanares valued at 1,812.50 euros.
No resignation possible. The sister responded to the first requests from the Treasury by assuring that the deceased had died without assets. Some time later he provided a notarial document of renunciation of inheritance dated September 29, 2020, more than three years after death occurred. His argument was that he did not know that his sister had assets, and that the only movements he had made in the deceased’s accounts were payment procedures for the residence where he received care his sister in her last month of life.
The court that reviewed the case in the first instance initially agreed with him, considering that this payment could be interpreted as timely management. However, the Community of Madrid, in charge of collecting the tax, appealed and the TSJM resolved differently. Although in theory you can renounce an inheritance at any time during the process, doing so after having acted on the deceased’s assets has tax consequences that no notarial deed can erase.
What does it mean to accept an inheritance without wanting to do so?. In Spain, you do not need to sign any paper to legally become an heir. The law includes in its article 999.3 the figure of tacit acceptance, which occurs when someone acts on the assets of a deceased as if they were already theirs, even if they have never confirmed acceptance of inheritance. Withdrawing money from your accounts, selling your property or simply managing your assets are examples of actions that, in the eyes of the law, are equivalent to saying “yes, I accept”, even if no paper has been signed.
The problem is that many people are not aware of this rule and believe that as long as they do not sign anything before a notary, they are safe. In reality, what matters is not what is signed, but what is done. The Supreme Court takes decades establishing that any act that unequivocally reveals that someone he is behaving like an heireven if informally or even unconsciously, has the same legal and fiscal effects as an express acceptance of the inheritance.
What the law says about disappearing money. The TSJM applied the article 11.1.a of the Inheritance and Donation Tax Lawwhich establishes that the assets that would have belonged to the deceased up to one year before his death They are considered part of the inheritanceunless proven otherwise by solid evidence. Not only did the sister not provide any explanation as to what had happened to that money, but she did not even try throughout the entire process.
The court also assessed that the deceased was admitted to a nursing home and was receiving special care, which made it highly unlikely that she would have been able to manage the withdrawal of the money from her accounts on her own. Given that the sister was the owner or authorized owner of all of them, the judges concluded that moving that money was equivalent, in the eyes of the law, to having accepted the inheritance.
Pay the tax, but get rid of the fine. The TSJ of Madrid confirmed that the woman had to pay 26,217.11 euros as settlement of the Inheritance Tax for her sister’s inheritance.
However, the judges annulled the fine of 17,999.73 euros that the Madrid treasury demanded, because the Community of Madrid failed to prove that the woman had acted with the deliberate intention of deceiving the treasury, something that the law requires before being able to impose a financial penalty of that type.
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