Special tax deferral regime
The special tax deferral regime provided for in articles 76 to 89 of Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Tax ( BOE of 28) , applies to Personal Income Tax taxpayers who make the contributions indicated below, provided that the entity that receives the contribution is resident in Spanish territory or carries out activities there through a permanent establishment to which the contributed assets are assigned and provided that, once the contributions are made, the taxpayer participates in the own funds of the entity that receives the contribution in at least 5%.
The contributions must consist of:
Contributions from branches of activity, understood as the set of elements that are likely to constitute an autonomous economic unit.
Contributions of elements related to economic activities.
In both cases, it is necessary for the taxpayer to keep the accounting of his economic activity in accordance with the provisions of the Commercial Code.
Contributions of shares or social participations of entities to which the special regime of Spanish or European economic interest groups and temporary joint ventures of companies do not apply, nor do their main activity involve the management of movable or real estate assets in the terms provided for in article 4.Eight.Two of Law 19/1991, of June 6, on Wealth Tax.
Valuation of assets received
The capital gains that arise as a result of non-monetary contributions are not included in the taxpayer's tax base, valuing, for the purposes of future transfers, the shares or participations acquired by the same tax value that the branch of activity had. or the contributed assets (value determined in accordance with the provisions Personal Income Tax ) and taking as their age the date of acquisition of the contributed element.
Important: The special tax deferral regime will not be applied when the operation carried out has as its main objective fraud or tax evasion. In particular, the regime will not apply when the operation is not carried out for valid economic reasons, such as the restructuring or rationalization of the activities of the entities participating in the operation, but with the mere purpose of obtaining a tax advantage.
Obligation to communicate
The making of the indicated contributions must be communicated to the Tax Administration with the indication, where appropriate, of the non-application of this special tax regime of Chapter VII of Title VII of the Corporate Tax Law. The communication must be presented by the acquiring entity, unless it is not resident in Spanish territory, in which case said communication will be made by the transferring entity. However, if none of them (neither the acquiring nor the transferring entity) have their tax residence in Spain, the obligation to notify will fall on the partners of the transferring entity, provided that they are residents in Spanish territory.