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

In the eleventh Additional Provision of RDLeg . 4/2004 in the wording given by section Four of article 1 of Royal Decree-Law 13/2010, of December 3, on actions in the fiscal, labor and liberalizing fields to promote investment and job creation, it was established the freedom of tax depreciation of investments in new elements of tangible assets 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 of the taxpayer in the tax periods beginning within the years 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 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.

In 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, of April 9, are not required, even if the elements have been made available to the taxpayer from December 3, 2010 until the conclusion of the last tax period prior to the one that begins on January 1, 2011, to which the freedom of amortization in tax periods may be applied in this way started as of January 1, 2011.

On the other hand, these requirements were required when the period, greater than two years, between the date of commissioning or start of the investment and the date of making available or operating the contracts for the execution of works or investment projects, was reached. to tax periods beginning within the years 2009 and 2010.

This eleventh Additional Provision was repealed with effect for investments made as of March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.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 section Four of article 1 of Royal Decree-Law 13/2010, 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 section Four of article 1 of Royal Decree-Law 13/2010, by virtue of which said pending amounts may be applied in tax periods in which the requirements demanded in article 108 of the RDLeg. 4/2004, with the limit of 20 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 limitation of 20 percent. hundred.

When taxpayers apply the freedom of amortization in any of the cases included in this section, they will enter in the reductions code [00551] the excess amortization that over the accounting amortization is tax deductible in the tax period being declared. In the increases key [00516] 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 and not positively integrated must be included in the key [00516]. still in the tax base.