Catalonia modifies ISD treatment of mortis causa donations with present delivery

Catalonia has removed the legal provision that classified a donatio mortis causa with immediate transfer of ownership as a donatio inter vivos  and changed its administrative approach. The regional government has repealed article 632-1.4 of the Tax Code of Catalonia, which allowed these transfers to be treated as inter vivos transactions for inheritance and gift tax purposes.

A mortis causa gift with immediate transfer of ownership (donación por causa de muerte con entrega de presente), as regulated in article 432-1 of Book Four of the Civil Code of Catalonia, allows the immediate transfer of the donated assets.

However, it is subject to a resolutory condition: revocation at the donor's discretion or the donee's predecease. This only lapses definitively upon the donor's death. This arrangement has significant tax, civil law and registration implications, and forms part of a broader set of legal concepts known as "in-life inheritances". These include, among others, the cumulative inheritance pact (heredamiento cumulativo) under Catalan civil law; the inheritance agreement (apartación) and pact of improvement (pacto de mejora) under Galician Civil Law; and the succession agreement known as pacto sucesorio de definición in the Balearic Islands.

The main source of tension has been the divergent approaches taken by the Spanish State Directorate-General for Taxation and the Catalan Directorate-General for Taxation and Gaming regarding the treatment of such transfers for inheritance and gift tax purposes.

The Spanish State Directorate-General for Taxation has reiterated its position in several recent rulings (V0028-26, V0304-25, V0532-25, V0575-25, V0697-25 and V1449-25) treating this arrangement as a succession title for both inheritance and gift tax and the donor's personal income tax, while acknowledging, in the latter case, the exclusion of capital gains under article 33.3(b) of the Personal Income Tax Law.

By contrast, the Catalan Directorate-General for Taxation and Gaming, since Ruling 248/19, which was based on judgments of the High Court of Justice of Catalonia from 2009 and 2014 and reiterated in Ruling V640/25 of 30 December 2025, has classified these arrangements as inter vivos gifts for inheritance and gift tax purposes where there is an immediate transfer of ownership, thereby allowing access to the regional tax reliefs available under the gift tax regime.

Catalonia clarifies the position

Law 11/2026 of 9 July on fiscal, financial, administrative and public sector measures, published in the Official Gazette of the Government of Catalonia (No. 9706 of 13 July) repeals article 632-1.4 of Book Six of the Tax Code of Catalonia pursuant to section 2(r) of its repealing provision. This provision had equated, for tax purposes, mortis causa gifts with immediate transfer of ownership, subject to a resolutory condition of revocation or the donee's predecease, with gratuitous acquisitions inter vivos.

In accordance with Final Provision Eight of the law, the repeal entered into force on 14 July, the day after its publication.

Resolution 3/2026: shift away from inter vivos criterion

In July, the Catalan Directorate-General for Taxation and Gaming issued Resolution 3/2026, which represents the most significant change in the Catalan administrative position on mortis causa gifts with immediate transfer of ownership since 2010.

Resolution 3/2026 is based on the established doctrine of the Spanish State Directorate-General for Taxation and sets out its conclusions.

Mortis causa treatment without exception

A mortis causa gift, regardless of when the donated assets are transferred, is an institution of succession law that takes effect upon the donor's death. This classification entails the application of the rules governing acquisitions mortis causa under the inheritance and gift tax in respect of the taxable event, tax base, reliefs, tax liability and formal obligations.

Express repeal of previous criteria

As from the date of Resolution 3/2026, Resolution 6/2010 of the Catalan Directorate-General for Taxation and Gaming and rulings No. 245/16 of 7 December 2016 and No. 8E/12 of 13 January 2012, as well as Ruling V640/25 of 30 December 2025, and any other rulings that conflict with the criteria laid down in this Resolution, are repealed.

Impact on existing transactions

The reform operates strictly on a prospective basis. Transfers completed prior to 14 July 2026 cannot be regularized under the new regime. The inter vivos assimilation criterion previously applied by the Directorate-General for Taxation and Gaming of Catalonia under the now-repealed article will continue to apply  to those transfers, based on arguments around the protection afforded by the legal system and the protective effect of binding rulings.

Protection afforded by the legal system

Taxpayers are protected against adverse changes in legislation and in the positions taken by the tax authorities, which generally operates exclusively on a prospective basis.

Acts carried out in accordance with the criteria and legislation in force at the time cannot be affected or prejudiced by a subsequent change or shift in doctrine. This conclusion is grounded in the principle of legitimate expectations, a specific manifestation of the principle of legal certainty guaranteed by article 9.3 of the Spanish Constitution.

This principle protects taxpayers who, acting in good faith, have arranged their tax affairs by reference to the established administrative position prevailing at the time the transaction was carried out.

Protective effect of binding rulings

Article 89.1 of the General Tax Law provides that the criteria expressed in a response to a ruling request shall be applied to the applicant unless and until the legislation or case law is amended. However, the protection goes further. As the legislator itself pointed out in the Explanatory Memorandum to the General Tax Law, such rulings are binding "not only on the applicant but also on other taxpayers, provided that their situation is identical to the factual scenario set out". 

The National High Court has been explicit in this regard: "The fact that the party concerned did not file a ruling request is irrelevant, and it even seems unnecessary that they should have done so in light of the rulings already issued by the Spanish State Directorate-General for Taxation". (National High Court ruling of 17 April 2019).

The Central Economic-Administrative Court has likewise confirmed that "a change in the tax authority's criteria will be binding only from the moment that change takes place, and past situations in which the taxpayer applied the administrative criterion in force at the time of filing their self-assessment cannot be regularised". (Decision 4571/2016).

Osborne Clarke comment

The repeal of article 632-1.4 of the Tax Code of Catalonia creates a regulatory gap of particular practical significance. With the assimilation provision now removed, the Catalan tax system no longer contains any express statutory provision determining whether mortis causa gifts with immediate transfer of ownership should be taxed under inheritance and gift tax rules for acquisitions mortis causa or under those for gratuitous acquisitions inter vivos. That distinction is far from trivial, given the substantial differences between the two regimes in terms of tax base, applicable reliefs, tax rates and multipliers. 

Notwithstanding the absence of any express regional legal provision, the new interpretative criterion is firmly anchored in the administrative position of the Catalan Directorate-General for Taxation and Gaming, which has acted swiftly and precisely to fill that gap through Resolution 3/2026 of 14 July.

In that resolution, the Catalan Directorate-General for Taxation and Gaming takes an unequivocally clear stance in favour of mortis causa treatment, expressly repealing all rulings and resolutions that conflict with that tax treatment, including Resolution 6/2010 and Ruling V640/25, and aligning itself definitively with the reiterated doctrine of the Spanish State Directorate-General for Taxation. In this way, Resolution 3/2026 dispels the uncertainty that the legislative repeal alone, had it been left without corresponding administrative guidance, would inevitably have generated.