It is not uncommon that, on more than one occasion and for various reasons, home donors intend to cancel said donation, but many of them do not know how to do it or whether, equally, they should carry with derived taxes of the action they want to override. The Civil Code addresses this issue and even contemplates exceptional cases to revoke this disinterested transfer. We see what possibilities it reflects, when and how it allows a donor to back down from their intention.
Civil Code
According to him Civil Code, when the legally required requirements, it is not possible to cancel the donation. Moreover, the same establishes some exceptional cases that would open a way to legally reverse this act. The assumptions for which a donation can be revoked due to a change of will in the donor are the survival or survival of children, the ingratitude of the donee and the breach of the charges.
Survival or survival of children
In the first of the cases that the Law collects, the survival or survival of children, the Civil Code says that all donations made between living will be revocable, by a person who does not have children or descendants, by the mere fact of occurring when the donor had, after the donation, children, even if they are posthumous; and, when the donor’s son, who was said to have died when he made the donation, is alive.
The donor, in the cases described, has the revocation action to obtain the restitution of the donated goods or their value, if they cannot be returned. This action has a duration of 5 years, counted from the news of the birth of the last child or the existence of the one believed to be dead. The donor himself and, upon his death, his children and descendants, that is, not the heirs, are entitled to exercise this action.
Ingratitude of the donee
This is where the Article 648 of the Civil Code, since the behaviors reflected in it are those that establish the aforementioned exception. The first refers to the fact that «the donee commits a crime against the person, honor or property of the donor.» Even if not necessarily must be an author, the figures of co-author, accomplice or cover-up are also contemplated.
Another assumption is «if the donee imputes to the donor any of the crimes that give rise to ex officio proceedings or public accusation, even if he proves it, unless the crime had been committed against the same donee, his spouse or the children constituted under his authority «or «if the donee improperly denies food to the donor».
Breach of charges
Article 647 is the one that collects this case and refers to the fact that the donee must voluntarily breach, and the power to revoke is not legally conditioned on the donor previously demanding compliance.
Taxes
The amounts in this tax are taxed in the town where the property is located, so that if the home is located in communities with more favorable taxation, less will be paid. The donee, that is, who receives the good, must pay the tax of inheritance and donations and, in addition, if it were the donation of an urban property (housing, commercial premises, garage, etc.), the municipal capital gains tax must be paid.
The donor, who transfers, must declare this operation in personal income tax if they have obtained a capital gain. There is an exception, when the transferor is over 65 years of age and that property is his habitual residence. In this case, you will not have to pay income tax on the income.
Tips when donating a home
In recent years, many donations have been made taking advantage of the reduction in the Donation Tax by various Autonomous Communities, and many donors have forgotten some aspects to take into account. Since DMS Consulting (@ConsultingDMS) it is noted that many people have formalized these donations of real estate thinking only of that tax, forgetting about others that accrued with those operations for amounts that can be very high.
And remember that The Treasury is beginning to review these operations and it can demand high taxes, even with penalties. In addition, the Tax Agency can verify the values of the properties declared in the deed of donation in order to demand higher taxes from the donee
