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The domestic trousseau in the acquisitions – inheritance tax

As it is known, one of the legal duties that are generated when someone accepts an inheritance is to present and liquidate the Inheritance Tax.

The Inheritance Tax is a direct and progressive tax that must be paid by the recipient of an inheritance before six months have elapsed since the death of the person from whom the goods are received, and envelope the movable or immovable property that the deceased had at the time of death. The taxable base of the tax will be the net value of the individual acquisition of each heir with respect to the set of goods, rights and obligations that form the patrimony of the deceased, having to diminish the burdens or encumbrances, debts and expenses that were deductible.

Among these assets that may be inherited by the deceased are the real estate (homes, houses, premises) as well as movable property (jewels, deposits, current accounts, investment funds). Another common good that can appear in every inheritance is the so-called "domestic trousseau". What is the domestic trousseau? What happens if the deceased died without leaving a trousseau? Or what happens if he died leaving a trousseau or domestic furniture of little value?

In this blog we will only focus on what is meant by domestic trousseau in the fiscal area and for the purposes of Inheritance Tax.

The  Spanish fiscal rule leaves no room for doubt when it establishes that for tax purposes, the domestic household goods will also be integrated into the hereditary wealth. Now, neither the Law nor the Regulation of Inheritance and Donations Tax determines what elements or goods in particular should be understood as included in the concept of "domestic trousseau"; although it is determined by article 1321 of the Spanish Civil Code, which establishes that the domestic trousseau is the set of goods consisting of clothes, furniture and furnishings that constitute household items of the deceased's home, not including jewelry, artistic objects, historical and others of extraordinary value.

Article 15 of the Law of Inheritance and Donations Tax states that: "the trousseau shall be valued by applying the percentage of 3% on the totality of assets that make up the estate of the deceased, unless the assignees assign a higher value to the trousseau or prove if nonexistence or that its value is lower than the result of applying the aforementioned percentage ".

It must be pointed out that this presumption always applies, even in cases of people residing in residences or hotels, and, as you can see, for this to be proven by the heirs or assignees that there is no such domestic trousseau, or that this trousseau It has a value less than 3% of the entire inheritance, being that obviously that test will be very difficult to achieve in most cases. Therefore, and up to now the norm is clear: It is presumed that the deceased will always leave a domestic trousseau that is valued at 3% of the assets that are part of the relict flow, unless it is clearly demonstrated that this is not it is like that and that he died without leaving the goods referred to in article 132 of the Civil Code.

The mere fact that the person does not have their own home at the time of death (case in which resides with a family member or in a residence) will not be in itself, conclusive proof to claim that no domestic trousseau, although it is true that there is also a minority jurisprudential current that affirms the contrary.

How can one prove that no domestic trousseau was left? How to state that the value of domestic trousseau is less than 3% presumed by the Law of Inheritance Tax? A way that can serve to accredit the tax administration the inexistence of trousseau or the lower value may be after the lifting of a notarial deed in the shortest possible time with the death of the deceased, accompanied by an expert report that assesses the assets . However, we must bear in mind that the tax administration may question that before the notarial deed no property has been removed from the property, so it must be in the circumstances concurrent.

From all the above, the great evidentiary difficulty that leads taxpayers to be able to demonstrate before the tax administration the inexistence of domestic trousseau or that this is less than 3%. Therefore and in practice we will find that in the vast majority of cases should be accounted for in the estate and automatically that 3% as domestic trousseau before the evidentiary difficulty.

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