In divorce cases, and when one spouse keeps using the dwelling which they do not own, who should pay IMI?
A taxpayer recently presented to the Tax Authority this case: she got divorced and the use of the dwelling was assigned to her ex-husband, so she asked for information about who is responsible for paying IMI, since she is unable to use the property and must rent another dwelling.
The taxpayer understood that, according to the Civil Code, the user is responsible for the payment of taxes and annual charges, as usufructuary, and that the holder of the right of habitation is not fulfilling the obligation to pay IMI, despite occupying the entire building and taking full advantage of it.
The AT, through the Binding Information of 29.04.2021, pronounced itself on this claim, on the Municipal Property Tax (IMI) to be applicable to the holder of the right of use and habitation, considering that the taxpayer is the one who must pay IMI.
The IMI Code states that IMI taxpayers are the owner, the usufructuary or the superficiaries. In other words, the CIMI does not establish that the user or the user dweller can be considered IMI taxpayers.
On the other hand, if there is no usufruct, the person whose name appears in the land register must pay IMI. And the user status has more limitations than the usufruct status because the user cannot, for example, assign the right to use the property to a third party, nor give it a different use, which is possible in the case of usufructuaries. If they did, the “user dweller” would lose their rights to the property, as they would no longer need it to live in.
For the AT, the differences in content between the legal regimes of usufruct and the right of use and dwelling led the legislator not to constitute the user or dwelling user as an IMI taxpayer.
In other words, if there is no usufruct on the part of the occupant, it is the owner of the property – the person whose name is on the land register – who must pay IMI.
03/03/2022