8.1.3.1.2. Income subject to imputation

Only the positive income obtained by the non-resident entity that comes from each of the sources indicated in article 91.2 of the Personal Income Tax Law will be imputed. When the participating entity is a resident of countries or territories classified by regulation as tax havens, it will be presumed, unless proven otherwise, that the income obtained comes from said sources.

In summary, the sources from which the positive income to be imputed must come are:

1. Income obtained from entities that carry out economic activities

   As a general rule, the resident partner must allocate the positive income obtained by the non-resident entity from the following sources to the general part of the tax base:

   1. Ownership of real estate and property rights that fall on them not affected by business activities.

   2. Participation in the equity of any type of entity and transfer of equity to third parties.

   3. Capitalization and insurance operations with the entity itself as beneficiary.

   4. Industrial and intellectual property, technical assistance, movable property, image rights and leasing or subleasing of businesses or mines.

   5. Transfer of prior assets and rights that generate income.

   6. Financial instruments derived from the performance of economic activities.

   7. Certain credit, financial, insurance and service provision activities.

   The income provided for in this number will not be imputed:

   • Positive income corresponding to income derived from credit, insurance or service provision activities when more than 50% of the income corresponding to these activities has been obtained from unrelated persons or entities.

   • The income provided for in letters b) and e) in the case of securities derived from participation in the capital or equity of entities that grant at least 5% of the capital of an entity and are held for a minimum period of one year, with the purpose of directing and managing the participation, provided that the participating entity meets certain requirements.

   • Positive income referred to in the letters of the previous section when the sum of their amounts is less than 15% of the total income obtained by the non-resident entity, except for the income referred to in letter g) of said section which will be imputed in its entirety.

   • Dividends or profit shares, including interim dividends, in the part that corresponds to the positive income that has been imputed.

2. Income obtained from entities that do not carry out economic activities

   The total income obtained will be imputed unless the taxpayer proves that the operations are carried out with the material and personal resources existing in an entity not resident in Spanish territory belonging to the same group within the meaning of article 42 of the Commercial Code.

Amount of positive attributable income

The amount of positive income to be imputed will be calculated in accordance with the principles and criteria established in the Corporate Tax regulations for determining the taxable base. For these purposes, the exchange rate in effect at the close of the financial year of the entity not resident in Spanish territory will be used.

When the participating entity is a resident of countries or territories classified as tax havens, it will be presumed, unless proven otherwise, that the income obtained by the participating entity is 15% of the acquisition value of the participation.

The imputation will be made in proportion to the participation of the resident natural person in the results of the non-resident entity and, failing that, to the participation in the capital, equity or voting rights of the entity.

Tax period to which income is attributed

The imputation will be made in the tax period that includes the day on which the non-resident entity has concluded its fiscal year, which, for these purposes, cannot be understood as lasting more than 12 months.