Is there a donation between spouses by transfer between bank accounts?

Is a large bank transfer from an account held by one spouse to an account held by the other spouse considered as a donation and subject to tax ?

A transfer between spouses can be considered a Donation as long as the following requirements are met

1.- Impoverishment of the donor.

2.- Enrichment of the recipient.

3.- The intention to make a donation (animus donandi), although this requirement is discussed.

That is to say, if the destination of the money is for common use it will not be considered a donation. If, on the contrary, the use is exclusive to one of the spouses, it will be considered a donation. In the case of a Joint account, it is more difficult for it to be considered as a Donation, however, in the case of an Inspection the burden of proof to demonstrate that any of the three previous requirements are not met falls on the Contributor.

Extension:

1.- Holder Spouse

It is a doctrine of the Supreme Court, pointed out in various judgments such as those of 31 October 1996, 23 May 1992, 15 July, 15 December 1993, 19 December 1995, 7 June 1996, 29 May 2000, 14 March and 12 November 2003 or more recently Judgment 83/2013 of 15 February the following:

"The criterion that money deposited in such accounts should become the property of one of them, by the mere fact of appearing as an indistinct holder, cannot be accepted because in the deposit contract the legal relationship is established between the depositor, owner of the deposited thing, and the depositary who receives it, the legal situation of the latter not being modified, as regards the deposited thing, by the designation of person or persons who may withdraw it. Such indistinct deposits do not therefore imply community of ownership of the objects deposited, and the courts must be satisfied as to their ownership. Therefore, the mere fact of opening a current bank account, indistinctly, in the name of two or more persons, only means prima facie that any of the holders will have the power to dispose of the balance of the account before the depositary bank, but does not in itself determine the existence of a condominium, which will be determined solely by internal relations and, more specifically, by the original ownership of the funds or cash on which the account is based".

The appellant submits that the authorisation to draw on the balance of a current account cannot be equated with a donation. That view is shared by this Central Economic Administrative Tribunal. However, in the present case, it is essential to stress that the case is different from the mere opening of a current account or its disposal. A private amount was fully invested in the subscription of several bank deposits as accredited by the Inspectorate. Specifically, in deposits on which in any case the participants have an individual right of ownership in half as stated in the contracts signed and which are on file.

In the technical sense, the donation comprises three essential elements:

1.- Impoverishment of the donor.

2.- Enrichment of the donor.

3.- The intention to make a donation (animus donandi), although this requirement is discussed.

2.- Joint Account

In this case, the transfer of money from an individual's personal checking account to another new joint account opened in the name of the same person and his wife does not constitute a donation for inheritance and gift tax purposes. However, this fact may be an indicator for the Tax Administration to presume such a donation based on the presumption of the existence of a lucrative transmission since there is a decrease in the husband's assets while the wife's assets increase.

Therefore, the burden of proof of the non-existence of the donation falls on the administered that may be required by the Administration. The administered person will have a period of 15 days to provide the allegations, evidence or documents that he considers relevant to prove that it is not a donation.

Once this period has elapsed, the competent office will issue a decision, the amount of the tax to be paid being determined by the evidence provided by the interested parties.

The interested parties may use the personal income tax returns (in which the interest is declared). It is important to note that the joint bank account does not imply co-ownership.