The Supreme Court must clarify whether to receive a company or family shares by donation, taking advantage of the 95% reduction in the Inheritance Tax and the deferral of personal income tax taxation, implies that the donee must assume the tax position of the donor or if non-compliance prevents the application of that regime when the required conditions are not met.
This is established in an order dated March 11, 2026, in which a cassation appeal has been admitted for processing following the case of a taxpayer who received shares in his father’s family business by applying these tax benefits and who, after failing to comply with the required requirements and selling them, was regularized by the Treasury with a settlement of more than 620,000 euros. The High Court appreciates that there is a cassational interest in establishing doctrine in the absence of a clear criterion and the existence of contradictory resolutions.
This type of operation allows, under normal conditions, to avoid paying taxes at the time of donation, deferring taxation, since the donee is subrogated to the fiscal position of the donor, transferring the tax burden to the moment in which the shares are transferred. However, when the requirements demanded by the regulations are not respected, the question arises as to whether this benefit is completely lost and whether the new owner must also assume the deferred tax obligations.
The Supreme Court will determine whether the donee assumes the tax burden of the donor
The High Court must determine if, in these cases, the beneficiary of the donation is obliged to assume the tax position of the donor, including the values and dates of acquisition, which would mean paying personal income tax on the profits generated, or if failure to comply with the requirements prevents the application of this deferral regime.
Specifically, you will have to clarify whether failure to comply with the Inheritance Tax requirements implies losing the personal income tax deferral regime or whether it can be maintained despite said failure.
In addition, the Supreme Court must also decide when the limitation period begins so that the Treasury can claim the tax, whether it is from the donation or from the subsequent transfer of the shares.
This issue is key, since it can determine whether the Administration has the right to demand payment or if the debt has already prescribed, and affects numerous transfers of family businesses, where the application of these tax benefits is common.