Specialties for change of residence to other States of the European Union or the European Economic Area

Regulations: Art. 123 Regulation

When the change of residence occurs to another 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 4 of the first Additional Provision of Law 36/2006, of November 29 , on measures for the prevention of tax fraud, the taxpayer may choose to apply the following specialties to capital gains:

a) The capital gain must only be subject to self-assessment when, within the period of ten years following the last one that must be declared for Personal Income Tax any of the following circumstances occur. :

1. That the shares or participations be transmitted inter vivos.

2. That the taxpayer loses the status of resident in a Member State of the European Union or the European Economic Area.

3. That the communication obligation referred to in letter c) of this section is breached.

The capital gain will be allocated to the last tax period that must be declared for Personal Income Tax , carrying out, where appropriate, complementary self-assessment, without penalty or interest for late payment or any surcharge.

The self-assessment will be submitted in the period between the date on which any of the aforementioned circumstances occur and the end of the immediately following tax declaration period or in the tax declaration period corresponding to the first year in which the taxpayer does not would have such a condition as a consequence of the change of residence, if this was later.

b) In the event that the shares or participations referred to in number 1 of letter a) above are transferred inter vivos within the period of ten years following the change of residence, the amount of the capital gain will be reduced by the positive difference between the market value of the shares or participations and their transfer value .

For these purposes, the transfer value will be increased by the amount of the distributed profits or any other perceptions that would have determined a reduction in the entity's net worth after the loss of taxpayer status, unless such perceptions had been taxed. for the Income Tax of non-residents.

c) The taxpayer must inform the Tax Administration of the option to apply the specialties to which we have referred in the previous letters, the capital gain revealed, the State to which he transfers his residence, with indication of the address, as well as subsequent variations, and the maintenance of ownership of the shares or participations.

d) In the event that the ten-year period passes without any of the circumstances provided for in letter a) of this section having occurred, it will not be required to self-assess the profit .

Exercise of the option to apply the specialties

The option to apply the above specialties will be exercised by the taxpayer by communicating to the Tax Administration through form 113, approved by Order HAP /2835/2015, of December 28 ( BOE of 30) in which, among other information, the following will be recorded:

• Identification of the shares or participations that give rise to capital gains due to change of residence.

• Market value of shares or participations.

• State to which the residence is transferred, with indication of the address, as well as subsequent variations in the address.

The communication must be submitted within the period between the date of the transfer and the end date of the Personal Income Tax declaration period corresponding to the first financial year in which the taxpayer did not have such a condition as a result of the change. of residence.