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 investee entity is a resident of countries or territories legally classified 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 develop economic activities

   In general, the resident partner must allocate in the general part of the tax base the positive income obtained by the non-resident entity that comes from the following sources:

   1. Ownership of real estate and real rights that rest on the same that are not affected by business activities.

   2. Participation in own funds of any type of entity and transfer of own capital to third parties.

   3. Capitalization and insurance operations that have the entity itself as beneficiary.

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

   5. Transfer of previous 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 percent of the income corresponding to them has been made with 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 own funds of entities that grant, at least, 5% of the capital of an entity and are held for a minimum period of one year, for the purpose of directing and managing the participation, provided that the investee entity meets certain requirements

   • The positive income referred to in the letters of the previous section when the sum of their amounts is less than 15 percent of the total income obtained by the non-resident entity, except the income referred to in letter g) of said section that will be charged in full.

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

2. Income obtained from entities that do not develop economic activities

   The total income obtained will be charged unless the taxpayer proves that the operations are carried out with the material and personal means existing in a non-resident entity in Spanish territory belonging to the same group in the sense 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 tax base. For these purposes, the exchange rate in effect at the end of the financial year of the non-resident entity in Spanish territory will be used.

When the investee 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 investee 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, own funds or voting rights of the entity.

Tax period to which the 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 to last longer than 12 months.