The testator establishes: “. FIRST: He bequeaths to his spouse the universal and lifetime usufruct of his inheritance, relieving him of the inventory and bond obligations, and empowering him to take possession of this legacy for himself. If any of the legitimaries does not accept this legacy and demands awards in full domain, his part will be reduced to what corresponds to him due to his strict legitimacy. In the event that everyone opposes, he bequeaths his legitim to them, instituting his spouse as heir, who, in addition to the usufruct of the improvement third, will have the free third in full ownership ……."
The Binding Consultation of the Directorate General of Taxes V0297-21 of February 18, 2021 clarifies the interpretation of the doctrine of the Supreme Court (STS 1248/2020 of October 1) (STS 1112/2020 of July 23) (STS 1113 /2020 of July 23) which establishes that when the inheritance is acquired from the moment of the death of the deceased, it is at that moment in which the spouse acquires the universal usufruct and the children the bare ownership; For this reason, if at the time of the division of the inheritance, the spouse and the children decide to commute the life usufruct bequeathed for full ownership of some assets. we find ourselves with a transfer act that must be taxed independently. Article 57 of the LISD would only be applicable to cases in which the commutation of the usufruct affects the legitimate rights referred to in articles 839 and 840 of the civil code.
For the TGT in this consultation when the commutation of all or part of the universal usufruct occurs because it is imposed or authorized by the testator in his testamentary dispositions; the adjudication of assets in freehold is produced by the will of the testator and not as a manifestation of the will of the parties, thus not producing a legal transaction other than the acquisition of the inheritance. Otherwise, we find ourselves with a transfer act that must be taxed independently.