Special case: acquisition or transfer by the borrower of securities similar to those borrowed
In accordance with the Eighteenth Additional Provision of Law 62/2003, of December 30, on fiscal, administrative and social order measures ( BOE of 31), the following special tax regime is applicable to the acquisitions or transfers made by the borrower of securities similar to those borrowed during the term of the loan:
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Transfers of homogeneous securities to those borrowed that are carried out during the term of the loan will be considered to primarily affect the borrowed securities , and will only be considered to affect the portfolio of homogeneous securities pre-existing in the taxpayer's assets, to the extent that the number of those transferred exceeds those borrowed.
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Acquisitions made during the term of the loan will be charged to the portfolio of borrowed securities , unless they exceed those necessary for the complete repayment of the loan.
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The income derived from the transfer of the securities borrowed will be imputed to the tax period in which the subsequent acquisition of other homogeneous securities takes place, and will be calculated by the difference between the transfer value and the acquisition value corresponding to those acquired during the duration of the loan and after the transfer.
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When the borrower borrows new homogeneous securities to meet the repayment of the securities, the price of the new homogeneous securities on the date of obtaining the new loan will be taken as the acquisition value.
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If the repayment is made by the borrower through the delivery of homogeneous securities pre-existing in his/her assets , the acquisition value will be taken as the price of the securities on the date of cancellation of the loan. This value will be taken as the transfer value to calculate the income derived from the return made with pre-existing homogeneous securities.
Please note that, although the Eighteenth Additional Provision of Law 62/2003 has been repealed with regard to Corporate Tax, with effect from 1 January 2015, by Law 27/2014, of 27 November ( BOE of the 28th), it remains in force for IRPF .
Example:
On May 3, 2021, Mrs. ERL sold on the Stock Exchange 400 shares of the Public Limited Company “TASA”, with a nominal value of 6 euros, at 300% according to the price of the same on that date. The shares sold are part of a package of 550, which were acquired by Mrs. ERL According to the following detail:
| No. of shares | Date of acquisition | Purchase price | Price/share |
|---|---|---|---|
| 250 | 02-02-1990 | 3,250 euros | 13 euros |
| 210 | 06-05-1995 | 3,570 euros | 17 euros |
| 90 | 13-01-1998 | 540 euros | 6 euros |
Determine the amount of the capital gain or loss obtained in said operation, knowing that the valuation of the shares for the purposes of the Wealth Tax corresponding to the 2005 financial year amounted to 15 euros per share and taking into account that the taxpayer has not made any transfer of assets since January 1, 2015 to whose gain the ninth transitional provision of the Tax Law was applicable
Solution :
In order to determine the capital gain or loss resulting from the transfer of the 400 shares, it is first necessary to identify those sold within the total number of those owned. To do this, the legal criterion must be applied that the shares sold are those that were acquired first (FIFO criterion), so that the 400 shares sold correspond to the 250 acquired on 02-02-1990, and 150 of those acquired on 06-05-1995.
Once the shares sold have been identified, within the total number of those owned, the total capital gain or loss must be calculated separately for the 250 shares acquired on 02-02-1990 and for the 150 acquired on 06-05-1995, according to the following detail:
1. Determination of the total capital gain or loss :
| Information | Acquired on 02-02-1990 | Acquired on 05-06-1995 |
|---|---|---|
| Number of shares sold (400) | 250 | 150 |
| Transmission value (300 euros per 100) | 4.500 | 2,700 |
| Cost price | 3.250 | 2.550 |
| Capital gains | 1,250 (1) | 150 (2) |
2. Determination of the capital gain generated prior to 20-01-2006 :
Value for the purposes of I. Assets 2005 (transfer value): 3.750
Acquisition value: 3.250
Capital gain generated before 20-01-2006 (3,750 -3,250) = 500
3. Calculation of reduction
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Profit generated with prior to 20-01-2006 susceptible to reduction (3)
Maximum limit: 400,000
∑ Transfer value of assets with the right to reduction from 01-01-2015: 0
Transfer value of the asset to which DT9 Law of IRPF applies: 4.500
Capital gains susceptible to reduction: 500
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Applicable reduction
Number of years of permanence as of 31-12-1996: up to 7 years
Reduction by abatement coefficients (100%): 500
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Reduced capital gain
Computable capital gain: 0
4. Determination of non-reducible capital gain: (generated from 20-01-2006):
Transfer value: 4.500
Value for the purposes of I. Assets 2005 (acquisition value): 3.750
Non-reducible capital gain (4,500 - 3,750) = 750
5. Determination of the computable capital gain :
The computable capital gain amounts to: (750+ 150) = 900
Notes on the example
(1) Since the transfer value of the shares (4,500 euros) is higher than their valuation for the purposes of the Wealth Tax for the 2005 financial year (250 x 15 = 3,750), the part of the capital gain generated prior to 20-01-2006, which is the only part that is reducible, must be determined. (Back)
(2) Since the shares were acquired after 31-12-1994, no reduction coefficients are applicable to the capital gain obtained. (Back)
(3) Since the maximum applicable limit on the transfer value is 400,000 euros and, in this case, the transfer value of the shares entitled to the application of reduction coefficients is 4,500 euros without any other transfer having taken place since 1 January 2015 with the right to the application of the ninth transitional provision of the Tax Law, the reduction coefficients will be applied to the entire amount of the capital gain generated prior to 20-01-2006. (Back)