The divorce process can be complex for couples with children, as they must determine what type of custody each of the parties will have and whether a child support fee will be established. However, the problems do not end once the marriage is dissolved, but continue if the extra expenses that one of the parents must pay have not been agreed upon. A question for which many parents end up going to court.
Although it seems that these types of issues only occur when one of the parents has parental authority and the other is forced to pay alimony, the truth is that this can also be required in cases of shared custody. A fairly common situation that, until now, The Treasury did not consider it compatible with the reductions and annuities it offered for divorced parents.
However, and as reported by lawyer Raúl Gómez, contributor to the Onda Cero program ‘They are not hours’, “the Supreme Court has just ruled a ruling that represents a significant setback for the Treasury and that can allow many taxpayers to pay less in their income tax return.” All thanks to the provisions of STS 1054/2026, of September 23, which contradicts the criteria that the Tax Agency has been applying until now.
It affects those parents with shared custody and alimony
“It resolves a very specific question, whether a parent with shared custody can apply simultaneously the minimum for descendants and the special tax treatment in judicially established alimony payments,” explains the lawyer. Until now, the Treasury considered that those parents who had to live with their children already had sufficient tax benefits, despite having to pay alimony to the other parent, which is why it established that said benefits were incompatible.
It should be remembered that, although this type of payment occurs when one of the parents does not have custody of the children, they contribute to the expenses related to their food, housing, care and support. However, on some occasions it may also be mandatory for parents who share custody, especially when there is a clear disproportion between the income of both parents. Establishing a pension proportional to your purchasing power.
The minimum for descendants and annuities for food
In these cases, the Treasury offered a series of benefits. Firstly, the minimum for descendants, present in article 58 of Law 35/2006 of Personal Income Tax. This is “a mechanism intended to recognize that a part of the taxpayer’s economic capacity must necessarily be allocated to satisfy your basic needs and, of course, those of your family“explains the lawyer. Therefore, its amount depends on the number of descendants who depend financially on the father, and can be increased when the child is under three years old or has a disability.
“When there is shared custody and both parents have the minimum right for the same child, it is usual for it to be distributed in halves,” recalls the collaborator. The problem appears when one of the parents is also forced to pay alimony to the other, since these “They are not deducted directly from the tax base“, but they are taken into account to calculate the full state and regional personal income tax quota. This is known as alimony annuities and is established in articles 64 and 75 of the Personal Income Tax Law.
The Supreme Court ruled that both mechanisms were compatible in certain cases
Although both provisions can be applied to parents who have dissolved their marriage, “since the tax reform introduced in 2014, the Treasury had been interpreting that both treatments were incompatible.” This meant that those parents who shared custody could not benefit from said annuities for maintenance even though they were obliged to pay a pension. “Anyone who looks at this situation objectively can realize that has neither head nor foot“says Raúl Gómez.
That is why the Supreme Court has ended this incompatibility after resolving the case of a father, with shared custody, who took care of his daughter half of the year and paid alimony to her mother. When he filed his income tax return in 2019, he wanted to apply both benefits, but the Treasury rejected the second tax advantage. “His argument was apparently simple, the law says that the special treatment of annuities for food corresponds to those who do not have the right to the minimum for descendants“.
The parent decided to appeal the decision, taking the case to the Superior Court of Justice of the Valencian Community, which ruled in his favor. However, the Treasury escalated the case to the Supreme Court and it decided “that both mechanisms can be compatible when they are projected over periods of cohabitation and maintenance obligations that do not overlap,” explains Raúl Gómez.