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Practical manual for Income Tax 2020.

4. Special case: "Unit Linked" (life insurance contracts in which the policyholder assumes the investment risk)

Regulations: Art.14.2. h) of Law Income Tax

"unit linked" are life insurance policies in which the policyholder can decide and modify the financial assets in which he wishes to materialize the technical provisions corresponding to his insurance, assuming the investment risk.

Taxation

Depending on whether or not these insurance contracts meet the conditions indicated below, two different tax regimes may apply to them:

a) If the insurance contract meets any of the legally established conditions for this purpose throughout the duration of the contract: The applicable tax regime is that of life insurance contracts set out in the previous sections within " Income from capitalisation operations and life or disability insurance contracts ", without the transfers made between the assets suitable for materialising the investments having any tax relevance.

b) If the insurance contract does not comply with the legally established conditions for this purpose throughout the duration of the contract: the policyholder must impute in each tax period as income from movable capital the difference between the net asset value of the assets affected by the policy at the end and at the beginning of tax period .

In this case, the imputed amount will reduce the income derived from the receipt of amounts from these contracts.

Legal conditions that must be met throughout the life of the contract for the general regime of life insurance contracts to be applicable:

1. That the policyholder is not granted the power to modify the investments affected by the policy.

2. That the mathematical provisions are invested in:

    1. Shares or units of collective investment institutions, predetermined in the contracts, provided that:

      - They are collective investment institutions adapted to Law 35/2003, of November 4, on Collective Investment Institutions ( BOE of the 5th).

- They are collective investment institutions covered by Directive 2009/65/ EC , of July 13, of the European Parliament and of the Council.

Precision: Although article 14.2.h) of the Personal Income Tax Law mentions Directive 85/611/ EC it was repealed, with effect from 1 July 2011, by article 117 of Directive 2009/65/ EC which also established that references to the repealed Directive shall be understood as references to said Directive 2009/65/ EC .

  1. Sets of assets reflected separately on the insurance company's balance sheet, provided that the following requirements are met:

    • The determination of assets must, at all times, be the responsibility of the insurance entity.
    • The investment of the provisions must be made in assets suitable for the investment of technical provisions included in article 50 of the Regulation on the organisation and supervision of private insurance, approved by Royal Decree 2486/1998, of 20 November, with the exception of real estate and real estate rights.

    • Investments in each set of assets must comply with the diversification and dispersion limits established, in general, for insurance contracts by the consolidated text of the Law on the Regulation and Supervision of Private Insurance, approved by Royal Legislative Decree 6/2004, of October 29, ( BOE of November 5) and its Regulation, approved by Royal Decree 2486/1998, of November 20, and other regulations issued in development thereof.

      However, those asset groups that seek to develop an investment policy characterised by reproducing a certain stock market or fixed-income index representative of one of the official secondary securities markets of the European Union will be deemed to meet such requirements.

    • The policyholder will only have the power to choose, between the different separate sets of assets in which the insurance company must invest the mathematical provision of the insurance, without in any case being able to intervene in the determination of the specific assets in which, within each separate set, the provisions are invested.
  2. In these contracts, the policyholder or the insured may choose, in accordance with the specifications of the policy, between the different collective investment institutions or separate sets of assets, expressly designated in the contracts, without there being any specific specifications for each policyholder or insured.