Specialties in the taxation of personal income tax paying partners of civil companies that have become corporate tax payers
Regulations: Thirty-second transitional provision.3 and 4 LIS
In the transfer by Personal Income Tax taxpayers of their participation in civil companies that as of January 1, 2016 are subject to Corporate Tax, a distinction must be made between:
A. Civil companies that had kept accounting in accordance with the commercial code in the years 2014 and 2015 in accordance with the provisions of article 68 of the Personal Income Tax Regulations
The difference between the acquisition or ownership value of the shares and the transfer value of the shares will be computed as capital gain or loss. To this end:
Acquisition value (VA): It is the price or amount paid for its acquisition
Ownership Value (Reserves) (VT): It is the result of making, where appropriate, two adjustments to the acquisition value:
Addition of the part corresponding to the partner of the amount of corporate profits, which, without effective distribution, would have been obtained by the company during the tax periods in which the income attribution regime was applicable in the period of time between its acquisition and disposal (VT1).
Subtraction of the profits distributed to the partner, which were obtained by the company during the tax periods in which the income attribution regime was applicable in the period of time before the acquisition by the partner of his participation in the company (VT2).
VT= VA + VT1 - VT2
B. Civil societies that have not kept accounting in accordance with the commercial code
Since no accounting has been kept, no amount can be attributed to the accounting reserves or to the own funds items on the balance sheet, and consequently there are no contributions from partners or profits recorded.
Consequently, a special rule equivalent to the previous one is established for these civil companies for the calculation of the acquisition value of the shares, taking into account the lack of accounting and without, in this case, adjustments to the acquisition value derived from the cost of ownership, which consists of understanding that as of January 1, 2016, for tax purposes, all of its own funds are made up of contributions from the partners, with the limit of the difference between the value of the property, plant and equipment and real estate investments, reflected in the corresponding record books, and the required liabilities, unless the existence of other assets is proven.
Therefore, the acquisition value of the shares as of January 1, 2016 will be determined by the difference between the value of the property, plant and equipment and real estate investments, reflected in the corresponding record books, and the required liability, unless the existence is proven. of other heritage elements.
The civil company January 1, 2016 in Corporate Tax.
The RC Partner On June 1, 2015, he acquired a 30 percent stake in the civil society from another partner, for which he paid 30,000 euros.
On March 2, 2021, the partner transferred his participation for 45,000 euros.
Calculate the ownership value (VT) of the transferred participation, taking into account that on the date of the transfer, the civil society had reserves of 20,000 euros, of which 16,666.66 corresponded to profits generated from 1 June 2015 and for which the company had paid taxes under the income attribution regime, and that on February 2, 2021 to the partner RC Reserves of 4,200 euros were distributed to it, of which 4,000 euros corresponded to profits obtained by the company prior to June 1, 2015 and for which the company had been taxed under the income attribution regime.
1. Transmission value : 45,000
2. Ownership value
Acquisition value of the social shares (VA) = 30,000
Amount of profits not distributed on the date of the transfer, generated by the partnership between the acquisition and the transfer (VT1) (1) (0.30 X 16,666.66) = 5,000
Amount of profits distributed to the partner, generated by the company prior to the acquisition (VT2) (2) = 4,000
Ownership value (Reserves) VT = VA + VT1 – VT2
VT = (VA) 30,000 + (VT1) 5,000 – (VT2) 4,000 = 31,000
3. Capital gain = Transfer value – Ownership value (VT) = 14,000
Capital gain = 45,000 – 31,000 = 14,000
Notes to the example:
(1) The RC Partner has already paid tax on the reserves generated from the date of acquisition of its participation and that were attributed to it by application of the income attribution regime, so the acquisition value of its participation must be corrected by said amount to avoid double taxation. Since the total amount of said reserves is 16,666.66 and the partner has a 30% stake in the company, the acquisition value must be corrected by 5,000 (0.30 X 16,667). (Back)
(2) The RC partner has not been taxed on the distribution of profits made on February 2, 2021, as its distribution is exempt, and has not been taxed on said profits due to the application of the income attribution regime, since the profits have been obtained by the company. prior to the acquisition of its participation by RC Consequently, the acquisition value must be reduced by said amount to avoid evasion of the tax on said income. (Back)