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Capital Gain Claim when selling a house

Cases in which to claim the return of the capital gain after selling a house.

A new sentence by the Constitutional Court, from last February, declares inconstitutional the application of capital gain in those cases in which the house did not increase its value when sold.


Following the precedent set by this sentence, one can claim capital gain as follows:

– Not when the house is sold at a price higher than when it was bouhgt.
– One can only claim the return of the tax if the sale took place in the last 4 years. Otherwise, prescribed.


In cases of Inheritance or donation one can claim taking into account the same rules that apply in a conveyancing case. The value included in the acquisition deed and the value stated in the transmission are the one which will determine if the capital gain can be claimed or not.


How to claim

1. Once Capital Gain tax has been paid, a written notice including the amount of the tax paid and a formal request asking for a rectification and devolution of the extra amount paid, must be submitted before the Town Hall which collect the taxes.

2. If the answer is negative we will have a period to submit an Appeal (except in those cities where there is not an Economic-Administrative Municipal Court) and, subsequently, an Administrative-Economic Complaint.

3. From this moment, a judicial procedure can be started and is where the possibilities to gain the claim increase. There is a period of two months to start this procedure before the Superior Court of Justice.


We highly recommend to receive the advisory of a professional to proceed with a claim as the possibilities of winning and even the possibility of starting a claim will vary from case to case.