There are numerous cases in which the buyer proposes the acquisition of a new construction under the usufruct regime and Bare/Naked ownership. This differentiation is important since both assumptions are taxed differently. In such a way that:
– The bare property in New Buildings is taxed by VAT + AJD
– The Usufruct is taxed by ITP (Transfer Tax)
Art. 20 of the VAT Ley expressly establishes that the constitution of rights of use and enjoyment (Usufruct) will be exempt from VAT. In addition, article 7.5 of the Transfer Tax Law establishes that the right of usufruct will be subject to this tax when it is exempt from being subject to VAT.
Therefore, at the time when the acquisition of a new construction property is made:
– The Bear/Naked ownership will be taxed by IVA+AJD
– The Usufruct will be taxed by ITP – Transfer Tax
Therefore, and from the first moment of the purchase transaction it will be necessary for the buyer to inform the builder/developer of his intention to acquire the property using the separate formula of usufruct-Bare ownership.
And this is because, the same contract of sale must include the following:
– That expressly establishes the bare property separated from the usufruct is acquired.
– That exactly the part of the price that is subject to VAT + AJD or ITP is valued.
– That the payments that must be made on account of the price of the usufruct are listed in the contract as separate from the payments of the bare property.
– At the end of the purchase, the promoter and the buyer must provide the corresponding list of payments in which it is justified that the proportional part of said payments has been made correctly, both as usufruct and as a bare property.
The usufruct can be temporary or for life. As far as your calculation is concerned, you can visit a good explanatory article by clicking here.
IN THE CASE OF USUFRUCT ACQUISITION USING A COMPANY OR LEGAL PERSON
In cases in which the property is going to be destined to the economic activity of the acquirer, it is very common to find acquisition formulas in which it is a company or legal person that acquires the usufruct.
In these cases of corporate acquisition of the usufruct, it must be said that the mechanism and operation when managing this acquisition is exactly the same as for the case that a natural person acquires said usufruct. The only difference is simply when calculating the usufruct of that legal person.
The rule for calculation is as follows:
– The usufruct of a legal person will be 2% for each year of duration, with a limit of 30 years.
Therefore, in no case may the value of the usufruct in the case of companies exceed 60%.
Likewise, it must be borne in mind that to the extent that the transfer of the usufruct is considered a provision of services, in accordance with article 11 3 of the VAT Law, it is not possible to waive the EXEMPTION FROM VAT if the requirements for it were met since it is only possible in relation to the supplies of goods but not to the supply of services.
For more information related to the concept and calculation of usufruct, we recommend visiting a specialized site for this purpose: