Specifically: Distribution of the issue premium and capital reduction with return of contributions
Regulations: Articles 25.1.e) and 33.3.a) Law IRPF
We must distinguish between:
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Securities admitted to trading on any of the securities markets of the European Union
In the case of distribution of the issue premium and the reduction of capital with return of contributions corresponding to securities admitted to trading the amounts obtained will reduce, until their cancellation, the acquisition value of the shares or participations affected and the excesses that may result will be taxed as income from movable capital not subject to withholding or payment on account.
However, when the capital reduction comes from undistributed profits, the entire amount received for this concept will be taxed as a dividend . For these purposes, capital reductions, whatever their purpose, shall be deemed to affect first and foremost the portion of share capital that does not come from undistributed profits, until they are cancelled.
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Securities not admitted to trading on any of the securities markets of the European Union
In the case of distribution of the share premium and capital reduction whose purpose is the return of contributions and does not come from undistributed profits , corresponding to securities not admitted to trading in any of the regulated securities markets defined in Directive 2014/65/ EU (European Union) of the European Parliament and of the Council, of May 15, 2014, relating to markets in financial instruments, and representative of the participation in own funds of companies or entities, when the difference between the value of the equity of the shares or participations corresponding to the last financial year closed prior to the date of the distribution of the premium or the date of the reduction of capital and its acquisition value is positive , the amount obtained or the normal market value of the goods or rights received will be considered income from movable capital with the limit of the aforementioned positive difference .
Note that, although articles 25.1.e) and 33.3.a) Law Personal Income Tax refer to Directive 2004/39/EC, of the European Parliament and of the Council, of April 21 of 2004, relating to markets in financial instruments, said directive has been repealed with effect from January 3, 2017 by Directive 2014/65/ EU (European Union) of the European Parliament and of the Council, of May 15, 2014, relating to financial instrument markets. This, in its article 94, provides that references to Directive 2004/39/EC will be understood as references to Directive 2014/65/ EU.
If the difference is negative or zero , the amount received will reduce the acquisition value of the shares or interests until it is nullified.
For the purposes of calculating the positive difference , the value of the equity will be reduced, where appropriate, by the following amounts:
- In the amount of profits distributed prior to the date of the distribution of the issue premium or the date of the capital reduction, from reserves included in the aforementioned equity.
- In the amount of the legally unavailable reserves included in said equity that would have been generated after the acquisition of the shares or interests.
Any excess over this limit will reduce the acquisition value of the shares or interests until it is nullified and the part of said excess that exceeds the acquisition value will be taxed as income from movable capital not subject to withholding or payment on account.
Likewise, in order to avoid cases of double taxation, if the distribution of the issue premium or the capital reduction intended to repay contributions and not derived from undistributed profits determined income from movable capital for the aforementioned difference between the acquisition value and that of the equity, and subsequently the taxpayer obtained dividends or shares in the profits of the same entity in relation to shares or participations that had remained in its assets since the distribution of the issue premium or since the capital reduction, the amount of these will reduce the acquisition value of the same, with the limit of the income from movable capital previously computed by the distribution of the issue premium or by the capital reduction with repayment of contributions.
In short: If the equity attributable to the individual taxpayer (minus the unavailable reserves included in said equity that were generated after the acquisition of the shares or participations and the amount of profits distributed prior to the date of the distribution of the issue premium or the date of the capital reduction from reserves included in said equity) exceeds the acquisition value of his or her shares or participations, the amount received, up to said positive difference, is taxed as income from movable capital. The remainder of the amount received reduces the acquisition value of the shares or interests until they are cancelled and the part that exceeds the acquisition value is taxed as income from movable capital not subject to withholding or payment on account.
The reason for this modification is that the explanatory paragraph only takes into account legal reserves as a reduction in equity, not mentioning the reserves distributed previously, which are included in equity. In turn, it is not specified that said legal reserves included in said equity are those that would have been generated after the acquisition of the shares. On the other hand, the word “excess” can be confusing, since in the previous paragraph it is used in the sense of the part of the total received that exceeds the positive difference between the equity and the acquisition value, while in the present paragraph it is used first as the positive difference between the equity and the acquisition value and secondly it seems that it is used as the part of the total received that exceeds the positive difference between the equity and the acquisition value. Finally, the expression “taxed again” should be eliminated, since each component into which the amount received from the company is divided is taxed or computed only once.
Below is a practical example on this topic: