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Practical manual for Income Tax 2019.

Income derived from preferred shares and subordinated debt

The income obtained from the transfer of own capital to third parties is considered to be the income derived from subordinated debt securities or preferred shares issued under the conditions established in the Second Additional Provision of Law 13/1985, of May 25, on investment coefficients, own resources and information obligations of financial intermediaries ( BOE of the 28th) and, since June 28, 2014, in the First Additional Provision of Law 10/2014, of June 26, on the regulation, supervision and solvency of credit institutions ( BOE of the 27th).

Please note that, with effect from 28 June 2014, Law 10/2014, of 26 June, on the regulation, supervision and solvency of credit institutions ( BOE of the 27th), has repealed Law 13/1985, of 25 May, on investment coefficients, own resources and information obligations of financial intermediaries, regulating in its First Additional Provision both the tax regime applicable to preferred shares and certain debt instruments (specifically subordinated debt) and the requirements they must meet. However, the entry into force of this Law 10/2014 does not modify the tax regime applicable to preferred shares and other debt instruments that had been issued prior to said date, in accordance with the provisions of the second transitional provision of the aforementioned Law.

Special optional rule for quantifying income derived from subordinated debt or preferred shares for compensation received for agreements entered into with issuing entities.

Regulations: Additional Provision forty-fourth Law IRPF

For those taxpayers who receive in 2019 as a result of agreements entered into with entities issuing subordinated debt and preferred shares, section 1 of the Forty-fourth Additional Provision of the Income Tax Law establishes a special quantification rule that allows a single return on movable capital to be computed in the year in which the compensation is received as the difference between the compensation received and the investment made, leaving intermediate repurchase and subscription or exchange of securities transactions without tax effects.

Since it is voluntary, the taxpayer may, in any case, decide not to apply the special rule and apply the general rules of IRPF , giving each of the operations carried out the appropriate treatment.

If you opt for the special rule of the Forty-Fourth Additional Provision of the Personal Income Tax Law the tax treatment you must follow is the following :

  • In the year in which the compensation derived from agreement is received, the difference between the compensation received and the investment initially made will be computed as income from movable capital. For these purposes, the aforementioned compensation will be increased by the amounts previously obtained from the transfer of the securities received. In the event that the securities received in the exchange have not been previously transferred or have not been delivered in connection with the agreement, the aforementioned compensation will be increased by the valuation of said securities that would have been taken into account for the quantification of the compensation.

  • The repurchase and subscription or exchange for other securities, nor the transfer of the latter carried out before or as a result of the agreement , will have no tax effects, and, where appropriate, a supplementary self-assessment must be made without penalty, late payment interest or any surcharge within the period between the date of the agreement and three months following the end of the deadline for filing the self-assessment in which the offsets referred to in the previous point are imputed, that is, within the period between the date of the agreement and September 30, 2020 ## .

    If you choose to apply this special quantification rule, immediately after filing, where applicable, these additional self-assessments, the taxpayer is obliged to report the years of the self-assessments affected by the new quantification, for which you must complete a specific form that can be submitted electronically, via the Internet (Electronic Headquarters of the AEAT ), or at the registration offices of the Tax Agency.

    Note: Unlike taxpayers who have received compensation as a result of agreements entered into with entities issuing subordinated debt and preferred shares, holders of subordinated debt or preferred shares whose contracts have been declared void by court ruling, and who have recorded income from them in their self-assessment corresponding to IRPF , may request the rectification of said self-assessments and request and, where appropriate, obtain a refund of undue income, even if the right to request a refund has expired.

    When the right to request a refund has expired, the correction of the self-assessment referred to in the previous paragraph will only affect the returns from subordinated debt and preferred shares, and any withholdings that may have been made on such returns.