Special case: acquisition or transfer by the borrower of securities homogeneous 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), to the acquisitions or transfers made For the borrower of homogeneous securities to those borrowed during the term of the loan, the following special tax regime is applicable:
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Transmissions of homogeneous securities to those borrowed that are made during the term of the loan will be considered to affect first the securities borrowed , 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 that are made during the term of the loan will be allocated to the portfolio of securities borrowed , unless they exceed those necessary for the complete return of the same.
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The income derived from the transfer of the borrowed securities will be allocated 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 that corresponds to the acquired during the duration of the loan and after the transfer.
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When the borrower borrows new homogeneous securities to cover the return 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 by delivering homogeneous securities pre-existing in his assets , the acquisition value will be taken as the price of the securities on the date of loan cancellation. This contribution value will be taken as the transfer value to calculate the income derived from the return made with pre-existing homogeneous values.
Please note that, although the eighteenth Additional Provision of Law 62/2003 has been repealed with regard to Corporate Tax, with effect from January 1, 2015, by Law 27/2014, of November 27 ( BOE of 28), remains in force for IRPF .
Example:
On May 3, 2021, Mrs. ERL sold 400 shares of the Public Limited Company “TASA” on the Stock Exchange, with a nominal value of 6 euros, at 300% according to their price 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 actions | Date of acquisition | Purchase price | Price/share |
|---|---|---|---|
| 250 | 02-02-1990 | 3,250 euros | 13 euros |
| 210 | 05-06-1995 | 3,570 euros | 17 euros |
| 90 | 01-13-1998 | 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 year 2005, amounted to 15 euros per share and taking into account that the taxpayer has not since January 1, 2015 transfer of assets to whose gain the ninth transitional provision of the Personal Income Tax Law would be applicable
Solution :
To proceed with the determination of the capital gain or loss resulting from the transfer of the 400 shares, it is necessary, first of all, to identify those sold within the totality of those owned. To do this, the legal criterion must be applied that the shares sold are those that were acquired in the first place (FIFO criterion), so that the 400 shares sold correspond to the 250 acquired on 02-02-1990, and 150 of those acquired on 05-06-1995.
Once the shares sold have been identified, among all 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 shares acquired on 05-06-1995, in accordance with the following detail:
1. Determination of 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 gain | 1,250 (1) | 150 (2) |
2. Determination of the capital gain generated prior to 01-20-2006 :
Value for purposes I. Assets 2005 (transmission value): 3,750
Acquisition value: 3,250
Capital gain generated before 01-20-2006 (3,750 -3,250) = 500
3. Reduction calculation
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Profit generated prior to 01-20-2006 subject to reduction (3)
Maximum limit: 400,000
∑ Transfer value of assets with the right to reduction since 01-01-2015: 0
Transfer value of the asset element to which DT9 Law of Personal Income Tax applies: 4,500
Capital gain susceptible to reduction: 500
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Applicable reduction
Number of years of tenure as of 12-31-1996: 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 01-20-2006):
Transfer value: 4,500
Value for purposes I. Equity 2005 (acquisition value): 3,750
Non-reducible capital gain (4,500 - 3,750) = 750
5. Determination of computable capital gain :
The computable capital gain amounts to: (750+ 150) = 900
Notes to 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 corresponding to the 2005 financial year (250 x 15 = 3,750), the part of the capital gain generated previously must be determined to 01-20-2006, which is the only one that is reducible. (Back)
(2) Since the shares were acquired after 12-31-1994, coefficients reducing the capital gain obtained are not applicable. (Back)
(3) As 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 reducing coefficients is 4,500 euros without it having occurred since January 1, 2015 no other transfer with the right to the application of the ninth transitional provision of the Personal Income Tax Law , the reducing coefficients will be applied to the entire amount of the capital gain generated prior to 01-20 -2006. (Back)