Disability and Inheritance Tax in Spain: how to prove this condition to reduce the fee

One of the main reductions in the taxable base of the Inheritance and Gift Tax that does not imply the concurrence of any degree of kinship with the deceased, is that relating to acquisitions mortis causa by people with mental, physical or sensory disabilities; Both Law 29/1987, of December 18, on Inheritance and Donations Tax, and the various regional laws that regulate this tax, provide important benefits for the disabled.

The legal concept of disability is recognized in Royal Decree 1414/2006, of December 1, which in its article 1 establishes:

“In accordance with the provisions of article 1.2 of Law 51/2003, of December 2, on Equal opportunities, non-discrimination and universal accessibility of people with disabilities, those who are treated as people with disabilities have recognized a degree of disability equal to or greater than 33%.

2. The following will be considered affected by a disability equal to or greater than 33%: a) Social Security pensioners who have a permanent disability pension in the degree of the total, absolute or severe disability (…) ”

Despite this legal consideration of the condition of disabled people, which does not seem to give rise to any doubt, in practice this is not the case, since there are people who, being beneficiaries of an absolute or total permanent disability pension by the Institute National Social Security, they have not obtained the certificate of disability in their respective Autonomous Community and the reduction corresponding to the degree of disability they suffer cannot be applied because they are not considered disabled for the purposes of the Inheritance and Donation Tax.

Indeed, in the alleged provision, the Income Tax of individuals, the Corporation Tax, the Tax on Patrimonial Transmissions and Documented Legal Acts and the Tax on Wealth are regulated, no reference is made to the inheritance tax and Donations, therefore, both different Departments of Finance of several Autonomous Communities, as well as some Superior Courts of Justice, considered that if the disabled person did not have this condition recognized by the competent autonomous body, but did hold the status of a pensioner of an Absolute or total permanent disability by the National Institute of Social Security, by virtue of the principle of tax tightness, the concepts defined in the law of a specific tax could not be applied to another different tax and therefore could not, could not benefit from the reduction in the tax base of the Inheritance and Gift Tax.

Other Superior Courts of Justice, on the contrary, understood that, despite the application of the reduction for disability requires that the degree of disability must be accredited by a certificate from the competent body of the Autonomous Communities, nothing says the regulations on Inheritance Tax and Donations that the tax benefit requires the existence of such resolution prior to the date of accrual of the tax, considering valid the certificate of disability issued by the competent autonomous body after the death of the deceased, provided that the certificate recognizes that the existence of the disease and ailments were prior to the date of his death.

This disparity of criteria between the different Superior Courts of Justice was resolved by the Supreme Court in its Judgment of June 7, 2012. The Resolution recognizes the disparity of treatment that is given in the different taxes for the effects associated with the recognition of disability, so that it is not possible to speak of a unitary tax regime; It considers that the common denominator, on which there is consensus in the whole of the regulation, is that people with a degree of disability equal to or greater than 33% have the legal consideration of people with disabilities and understands that, from the tax perspective, the administrative recognition of the handicap is not constitutive, but merely declarative.

The Third Chamber, in addition to settling the controversy, goes further and accepts the possibility of applying the reduction in question as long as the handicapped person can prove that he had the symptoms of his handicap prior to the date of death of the causer, considering that, after the modification introduced by article 61 of Law 21/2001, of December 27, which rewrites article 20.2.a), of Law 29/1987, of December 18, of the Tax on Successions and Donations, it is only specified that the degree of disability is “in accordance” with the scale of article 148 contained in the Consolidated Text of the General Law of Social Security, nothing more, it is not required that it has been declared by the body competent administrative authority for this purpose, nor are the means of proof to prove the legal condition of a disabled person limited.