4.2.15 Keys 00516 and 00551 freedom of amortization without maintaining employment (RDL 13/2010 and DT 13ª.2)

In the eleventh Additional Provision of the RDLeg . 4/2004, as amended by section Four of article 1 of Royal Decree-Law 13/2010, of 3 December, on fiscal, labour and liberalising actions to encourage investment and job creation, established freedom of tax depreciation of investments in new 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 the tax periods commencing in 2011, 2012, 2013, 2014 and 2015. 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.

Under this regime, the employment maintenance requirements established in the wording given to the Eleventh Additional Provision of Royal Legislative Decree 4/2004 by Royal Decree-Law 6/2010, dated April 9, are not required, even if the elements have been made available to the taxpayer from December 3, 2010 until the end of the last tax period prior to the one starting on or after January 1, 2011, to which the freedom of amortization may thus be applied in tax periods starting on or after January 1, 2011.

However, these requirements were enforceable when the period, greater than two years, between the date of the order or start of the investment and the date of provision or operation of the contracts for the execution of works or investment projects, covered tax periods beginning within the years 2009 and 2010.

This eleventh Additional Provision was repealed with effect for investments made after March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.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 Section Four of Article 1 of Royal Decree-Law 13/2010, 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 Section Four of Article 1 of Royal Decree-Law 13/2010, 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 are not met. 4/2004, with a limit of 20 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 20 percent limit.

When taxpayers apply the freedom of amortization in any of the cases included in this section, they will record in the [00551] reduction key the excess amortization over the accounting amortization that is tax deductible in the tax period subject to declaration. In the [00516] key for increases, the amount of amortization recorded in the tax period subject to declaration and which has already been deducted in previous tax periods through the corresponding decrease or negative adjustment to the accounting result will be recorded.

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 not yet positively integrated into the tax base must be included in key [00516].