The Supreme Court clarifies the calculation of capital gains or losses arising from the transfer of real estate property leased by natural persons who do not carry out an economic activity

In its judgment of 20 November 2025, the Supreme Court established doctrine on how to determine capital gains or losses, for personal income tax purposes, resulting from the transfer of leased real estate property not used for economic activities, when the transferor has applied depreciation during the term of the lease, lower than that provided for in the tax regulations of 3% – the maximum amount deductible without the need to prove the effectiveness of the depreciation – for the determination of the return on real estate capital.

The Personal Income Tax Regulations stipulate that the acquisition value of the transferred assets shall be reduced by the amount of the tax-deductible depreciation, calculating in all cases the minimum depreciation, regardless of whether it is actually considered an expense.

The question of interest in the appeal was to determine whether the taxpayer must, for these purposes, deduct the depreciation of the property at the rate of 3% established as the maximum depreciable amount in the regulations or, on the contrary, whether they can apply a lower rate, which would have been used to quantify the expense deducted for this item.

The Supreme Court ruled in the affirmative, establishing the doctrine that, for the purposes of the capital gain or loss derived from the disposal of the leased property, the natural person who is the owner, even if not engaged in economic activity, who has calculated the depreciation of the property for the determination of the return on real estate capital in accordance with a criterion that fits the legal concept of minimum depreciation, will not necessarily have to apply the maximum depreciation of 3% to quantify the acquisition value of the property.