El Tribunal Supremo resuelve dos cuestiones decisivas en las extinciones de condominio: Cuándo hay una única comunidad y cuándo hay una disolución de comunidad: STS de 26 de abril de 2024, REC. núm. 6421/2022

Abstract

In this judgment, the High Court resolves two fundamental aspects in the controversial taxation of condominium terminations in the  Transfer Tax (ITP and AJD), with obvious consequences in other taxes such as Personal Income Tax and Tax on Value increase on  urban real estate (IIVTNU).

The first thing to consider is that there is a single community over a plurality of assets, constituting a «collective patrimony» when  there is identity of commoners and shares, regardless of the origin and title of acquisition of the assets. And, therefore, the  dissolution of the single community with allocations proportional to the assets does not entail exchanges of quotas of different  communities subject to the Transfer Tax (TPO modality), but subjection to AJD as a non-transferable act, but determinative or  specific in accordance to civil law.

The second thing, also important, although collateral, is to affirm that, according to civil law, there is dissolution of community and  nothing else, when a commoner exercises the action of division and is awarded assets proportional to his assets or an indivisible  asset compensating the rest onerously.