Specific valuation standard
In cases in which the separation of partners occurs, as well as cases of dissolution of companies, the difference between:
Value of the social liquidation fee or the market value of the assets received , and
Acquisition value of the corresponding title or capital participation .
Article 37.1.e) of the Personal Income Tax Law only refers to “cases of separation of partners...”, without distinguishing or specifying what the causes of separation must be. of the partner of the company nor limit them to cases in which commercial regulations attribute to the partners the possibility of exercising the right to separate from the company, so it must be understood that the cases of 'separation of partners' contemplated in the aforementioned Article 37.1.e) includes all cases in which the partner ceases to hold such status with respect to the company.
For this reason, if a natural person partner transfers all of his shares to the company in which he participates for amortization via capital reduction, we must go to the result of this operation, which is the "separation of the partner", in that he leaves to participate in the company and lose the status of partner, which means that the specific valuation rule contained in article 37.1.e) Law of Personal Income Tax that considers the amount perceived as capital gain and the general rule provided for in article 33.3.a) of the Personal Income Tax Law is not applicable for the reduction of capital with return of contributions that would lead to it being classified as capital gains. movable capital the income obtained by the partner.
Company interests acquired before December 31, 1994
In this case, if a capital gain is obtained, the part of the capital gain that was generated prior to January 20, 2006 (the only one to which the reduction or reduction coefficients are applicable) must be distinguished from that generated later. to that date on which the reduction or abatement coefficients are not applicable.
The determination of the capital gain generated prior to January 20, 2006 and the application, where applicable, of the reducing coefficients will be carried out in accordance with the distribution rules discussed herein Chapter.
Example: Separation of partners or dissolution of companies
In the dissolution of the public limited company “MANSA”, which is not listed on the Stock Exchange, on March 15, 2021, Mr. ROL, who owned 15 percent of its share capital, was awarded a plot of land whose book value was at the aforementioned date amounted to 16,500 euros and, in addition, the amount of 6,000 euros, which correspond to voluntary reserves of the company. The market value of the awarded lot is estimated, according to expert opinions issued for this purpose, at 132,000 euros.
The corporate participation was acquired by Mr. ROL on May 3, 1993, disbursing an amount equivalent to 153,000 euros, including the expenses and taxes inherent to said acquisition.
Determine the amount of the capital gain or loss obtained as a result of the dissolution of said company.
Transfer value: 138,000
Market value of the lot: 132,000
Social settlement fee value: 6,000
Acquisition value of the corporate participation: 153,000
Asset loss (138,000 - 153,000) =15,000
Although the period of permanence of the corporate participation in the assets of Mr. ROL as of 12-31-1996 is greater than two years, since a capital loss has been obtained, the reducing coefficients are not applicable.