Special regime for tax deferral of securities exchange
Regulations: Articles 37.3 Law Personal Income Tax and 80 LIS
The special tax deferral regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Tax ( BOE of 28)(35), is applicable to taxpayers of Personal Income Tax who carry out the exchange of securities that defines article 76.5 of the LIS as the operation by which an entity acquires a participation in the share capital of another that allows it to obtain the majority of the voting rights in it or, if it already has said majority, acquire a greater participation, by attributing to the partners, in exchange for their values, other representatives of the share capital of the first entity and, where applicable, compensation in money that does not exceed 10% of the nominal value or, in the absence of nominal value, of a value equivalent to the nominal value of said values deducted from its accounting; as long as the requirements are met:
That the partners who carry out the exchange of securities reside in Spanish territory or in that of any other Member State of the European Union or in that of any other State provided that, in the latter case, the values received are representative of the share capital of a company. entity resident in Spain.
That the entity that acquires the securities is resident in Spanish territory or falls within the scope of application of Directive 2009/133/ CE .
That the operations have not involved entities domiciled or established in countries or territories classified as tax havens or that the income is obtained through them.
Valuation of assets received
When the above requirements are met, the capital gains that are revealed during the exchange of securities will not be integrated into the taxpayer's tax base.
The valuation and age of the shares received by the partners by virtue of the exchange must be carried out, for the purposes of future transfers, at the acquisition value and age of the shares delivered. Said valuation will be increased or decreased by the amount of the complementary monetary compensation delivered or received.
When the partner is considered entity under the income attribution regime , it will not be included in the tax base of the people or entities that are partners, heirs, community members or participants in said partner, the gain generated on the exchange of securities, provided that the tax regime established in Chapter VII of Title VII of the LIS applies to the operation or is carried out under the protection of Directive 2009 /133/EC of the Council, of 19 October, relating to the common tax regime applicable to mergers, divisions, partial divisions, contributions of assets and exchanges of securities carried out between companies of different Member States and to the transfer of the registered office of an SE or an SCE from one Member State to another, and the values received by the partner retain the same tax valuation as those exchanged.
Loss of resident status in Spanish territory
Regulations: Art. 80.4 LIS
In the event that the partner who applied the special tax deferral regime loses the status of resident in Spanish territory, it will be included in the tax base of IRPF of the last tax period that must be declared by this tax, the difference between the market value of the shares or participations and their value calculated in accordance with what was indicated above (that is, by the tax value of those delivered), unless the shares or participations are subject to a permanent establishment located in Spanish territory.
Postponement of debt payment due to change of residence to other States of the European Union or the European Economic Area
However, the payment of the resulting tax debt, when the partner acquires residence in a Member State of the European Union, or of the European Economic Area with which there is an effective exchange of tax information in the terms provided for in section 3 of The first Additional Provision of Law 36/2006, of November 29, on measures for the prevention of tax fraud, will be postponed by the Tax Administration at the request of the taxpayer until the date of the transfer to third parties of the affected shares or participations, The provisions of Law 58/2003, of December 17, General Tax, and its implementing regulations are applicable, regarding the accrual of late payment interest and the constitution of guarantees for said postponement.
Recovery of resident status in Spanish territory
If the taxpayer again acquires the status of taxpayer of Personal Income Tax without having transferred ownership of the shares or participations, he or she may request rectification of the self-assessment in order to obtain a refund of the amounts. entered corresponding to these capital gains. The rectification request may be submitted after the end of the declaration period corresponding to the first tax period in which a self-assessment of Personal Income Tax must be submitted
Obligation to communicate
The carrying out of securities exchange operations to which the special tax deferral regime provided for in the Corporate Tax Law applies must be communicated to the Tax Administration by the entity acquiring the operations. However, if the acquiring entity is not resident in Spanish territory, said communication will be made by the transferring entity. And if neither the acquiring entity nor the transferring entity are residents in Spanish territory, it will be the partners, provided that they are residents in Spanish territory, who must present the communication.