4.2.14 Codes 00514 and 00509 freedom of amortization with maintenance of employment (RDL 6/2010 and DT 13ª.2 LIS)

In the eleventh Additional Provision of RDLeg . 4/2004 in the wording given by article 6 of Royal Decree-Law 6/2010, of April 9, on measures to promote economic recovery and employment, the freedom of tax amortization of investments in elements was established. new property, plant and equipment and real estate investments used in economic activities (if these investments are made through financial leasing contracts, with the condition that the purchase option is executed) made available to the taxpayer in the tax periods beginning within the years 2009, 2010, 2011 and 2012, with the requirement of maintaining employment (detailed in the standard itself) during the twenty-four months following the start date of the tax period in which the elements have come into operation. For contracts for the execution of works or investment projects that require a period of more than two years between the date of commission or start of the investment and the date of its making available or in operation, the freedom of amortization will only be applicable with respect to the ongoing investment made within the tax periods beginning within the aforementioned years.

This eleventh Additional Provision was repealed with effect for investments made as of March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.

However, the thirteenth transitional provision of LIS establishes in its section 2 that taxpayers who had made investments until the entry into force of Royal Decree-Law 12/2012, to which it applied the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. 4/2004 in the wording given by article 6 of Royal Decree-Law 6/2010, they may continue to freely amortize the amounts pending application, under the conditions established therein.

For tax periods beginning on or after January 1, 2015, the thirty-fourth transitional provision of the LIS in letter b) maintained the transitional regime applicable to amounts pending amortization related to investments made until March 30, 2012 and covered by the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. 4/2004 in the wording given by article 6 of Royal Decree-Law 6/2010, by virtue of which said pending amounts may be applied in tax periods in which the requirements demanded in article 108 of the RDLeg are not met. 4/2004, with the limit of 40 percent of the tax base prior to its application, to the integration referred to in article 11.12 of the LIS and to the compensation of negative tax bases.

This same limit will apply to ongoing investments made until the entry into force of Royal Decree-Law 12/2012, which correspond to new elements commissioned under contracts for the execution of works or investment projects whose execution period requires a period greater than 2 years between the date of commissioning or start of the investment and the date of its availability or operation.

On the other hand, for tax periods that begin on or after January 1, 2016, taxpayers who made investments until the entry into force of Royal Decree-Law 12/2012 may continue to apply the freedom of amortization without the 40 percent limitation. .

Taxpayers who apply the freedom of amortization under the conditions established in this section, will enter in the reductions key [00509] the excess amortization that over the accounting amortization is tax deductible in the tax period object of declaration. In the increase key [00514], they will record the amount of depreciation recorded in the tax period being declared and that had already been deducted in previous tax periods through the corresponding decrease or negative adjustment to the accounting result.

In the event that the element on which the freedom of amortization has been applied is transferred, in the tax period in which it is transferred, the amount of the negative adjustments made previously must be included in the key [00514], and that has not been positively integrated into the tax base.