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Form 200. Corporate Income Tax Declaration 2018

4.2.84 Codes 00329 and 00330 acquisition of shares of non-resident entities (DT 14ª LIS)

The fourteenth transitional provision of the LIS establishes that the deduction established for the acquisition of shares in non-resident entities, in section 5 of article 12 of the Revised Text of the Corporate Tax Law, approved by Royal Legislative Decree 4/2004, of March 5, as worded in force for tax periods beginning before January 1, 2015, will continue to apply, under the terms established therein.

Therefore, taxpayers who in tax periods beginning on or after 1 January 2002 have acquired securities representing participation in the equity of entities not resident in Spanish territory whose income may be eligible for the exemption established in article 21 of RDLeg . 4/2004 or the exemption provided for in article 20 bis of Law 43/1995, will record in the code [00330] (decreases) up to an annual maximum of one hundredth of the amount, which does not correspond to impute to the assets and rights of the entity not resident in Spanish territory, of the difference (positive) between the purchase price of the participation and the net worth of the participating company at the date of acquisition, in proportion to that participation. And when they transmit the aforementioned securities, they must record in key [00329] (increases) the amount that, due to the acquisition of the same, they included in key [00330] as a decrease.

This deduction from the tax base for the acquisition of shares in non-resident entities is also subject to the following conditions and considerations:

It will not apply to acquisitions of securities representing participation in the equity of entities not resident in Spanish territory, made after 22 December 2007, without prejudice to the provisions of section 3 of article 1 of the Commission Decision of 12 January 2011, relating to the tax amortisation of financial goodwill for the acquisition of foreign participations, case C-45/2007, with respect to acquisitions related to an irrevocable obligation agreed before 22 December 2007. However, in the case of acquisitions of securities conferring the majority of the equity interest in entities resident in another non-EU Member State, carried out between 22 December 2007 and 21 May 2011, the deduction may be applied when the existence of explicit legal obstacles to cross-border business combinations is demonstrated, in accordance with the terms established in sections 4 and 5 of article 1 of the aforementioned Commission Decision of 12 January 2011, in accordance with the provisions of the third paragraph of section 5 of article 12 of the RDLeg. 4/2004, as amended by the Sixth Final Provision of Law 31/2011, of October 4, although containing the corresponding effect for the correction of errors(1) (published in DOUE of 26 November 2011) of the aforementioned Decision of the European Commission of 12 January 2011.

And since there have been other drafts of section 5 of article 12 of the RDLeg. 4/2004 prior to that given by Law 31/2011, for tax periods starting from January 1, 2015, the following must be taken into account:

  1. In relation to the acquisition of shares in entities not resident in Spanish territory carried out after 1 January 2011, the deduction will only be applicable in the admissible cases according to the wording of the third paragraph of section 5 of article 12 of the RDLeg. 4/2004 given by Law 31/2011.

  2. In relation to the acquisition of shares in entities not resident in Spanish territory carried out after December 22, 2007, the corresponding amount related to the pending deduction generated in tax periods beginning before January 1, 2011 will only be applicable to the cases permitted in the wording of the third paragraph of section 5 of article 12 of the RDLeg. 4/2004 given by Law 31/2011, with the aforementioned affectation.

  3. In relation to the shares of entities not resident in Spanish territory acquired between January 1, 2002 and December 22, 2007, the corresponding outstanding amounts may be deducted.

(1) According to which, for acquisitions made on December 21, 2007, the aforementioned article 12.5 of the LIS may be applied.(Back)