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

In the eleventh Additional Provision of the RDLeg . 4/2004, as amended by article 6 of Royal Decree-Law 6/2010 of 9 April on measures to boost economic recovery and employment, established freedom of tax depreciation of investments in new items of tangible fixed assets and real estate investments relating to economic activities (if such investments are made through financial leasing contracts, provided that the purchase option is exercised) made available to the taxpayer in tax periods beginning in 2009, 2010, 2011 and 2012, with the requirement of maintaining employment (detailed in the regulation itself) for twenty-four months following the start date of the tax period in which the items came 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 the order or start of the investment and the date of its availability or operation, the freedom of amortization will only be applicable with respect to the investment in progress made within the tax periods that begin within the aforementioned years.

This eleventh Additional Provision was repealed with effect for investments made after March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.

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

For tax periods beginning on or after 1 January 2015, the thirty-fourth transitional provision of the LIS in letter b) maintained the transitional regime applicable to the amounts pending amortization relating to investments made until 30 March 2012 and covered by the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. 4/2004 as amended by Article 6 of Royal Decree-Law 6/2010, pursuant to which such outstanding amounts may be applied in tax periods in which the requirements set out in Article 108 of the Royal Decree-Law 6/2010 are not met. 4/2004, with a limit of 40 percent of the tax base prior to its application, the integration referred to in article 11.12 of the LIS and 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 of more than 2 years between the date of commissioning or start of the investment and the date of its availability or operation.

However, for tax periods beginning on or after 1 January 2016, taxpayers who made investments before the entry into force of Royal Decree-Law 12/2012 may continue to apply the free depreciation without the 40 percent limit.

Taxpayers who apply the freedom of amortization under the conditions established in this section will record in the [00509] reduction key the excess amortization over the accounting amortization that is tax deductible in the tax period subject to declaration. In the [00514] key for increases, they will record the amount of the amortizations recorded in the tax period subject to declaration 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 and which have not yet been positively integrated into the tax base must be included in key [00514].