d) Income derived from preferred shares and subordinated debt
Income derived from subordinated debt securities or preferred shares issued under the conditions established in the second Additional Provision of Law 13/1985, of May 25, on coefficients, is considered income obtained from the transfer of own capital to third parties. of investment, own resources and reporting obligations of financial intermediaries ( BOE of 28) and, since June 28, 2014, in the first Additional Provision of Law 10/2014, of June 26, on organization, supervision and solvency of credit institutions ( BOE of 27).
Please note that, with effect from June 28, 2014, Law 10/2014, of June 26, on the organization, supervision and solvency of credit institutions ( BOE of 27) , repealed Law 13/1985, of May 25, on investment coefficients, own resources and reporting obligations of financial intermediaries, regulating in its first Additional Provision both the tax regime applicable to preferred shares and certain debt instruments ( specifically, subordinated debt) as the requirements that must be met. However, the entry into force of this Law 10/2014 does not modify the tax regime applicable to preferred shares and other debt instruments that had been issued prior to said date, in accordance with the provisions of the second transitional provision of the cited Law.
Special optional rule for quantifying income derived from subordinated debt or preferred shares for compensation received for agreements entered into with the issuing entities
Regulations: Additional Provision forty-fourth Law Personal Income Tax
For those taxpayers who receive compensation in 2021 as a result of agreements entered into with entities issuing subordinated debt and preferred shares, the Personal Income Tax Law establishes a special quantification rule that allows computing, On a voluntary basis, in the year in which the compensation is received, a single return on movable capital for the difference between the compensation received and the investment made, leaving without tax effects the intermediate operations of repurchase and subscription or exchange of securities.
As it is voluntary, the taxpayer can, in any case, decide not to apply the special rule and apply the general rules of Personal Income Tax , giving each of the operations carried out the appropriate treatment.
If you opt for this special rule the tax treatment you must follow is the following :
In the year in which the compensation derived from the agreement is received, the difference between the compensation received and the investment initially made will be computed as return on movable capital. This compensation will be increased by the amounts that would have been previously obtained by transmitting the values received. In the event that the values received in the exchange had not been previously transmitted or had not been delivered as a result of the agreement, the aforementioned compensation will be increased in the valuation of said values that would have been taken into account for the quantification of the compensation.
The repurchase and subscription or exchange for other securities, nor the transfer of the latter carried out before or as a result of the agreement , will not have tax effects, and complementary self-assessment must be carried out, if applicable, without penalty, nor late payment interest, nor any surcharge in the period between the date of the agreement and the three months following the end of the period for submitting the self-assessment in which the compensation referred to in the previous point is attributed, that is, within the period between the date of the agreement and September 30, 2022 .
If you choose to apply this special quantification rule, immediately after the presentation, if applicable, of these complementary self-assessments, the taxpayer is obliged to communicate the years of the self-assessments affected by the new quantification, for which they must complete a specific form. which can be presented electronically, through the Internet (Electronic Headquarters of the AEAT ), or in the registration offices of the Tax Agency.
Note: Unlike taxpayers who have received compensation as a result of agreements entered into with the entities issuing subordinated debt and preferred shares, holders of subordinated debt or preferred shares whose contracts have been declared null and void by court ruling, and who have recorded returns of The same in their self-assessment corresponding to Personal Income Tax , may request the rectification of said self-assessments and request and, where appropriate, obtain the refund of undue income, even if the right to request the refund has expired. .
When the right to request the refund has expired, the rectification of the self-assessment referred to in the previous paragraph will only affect the income from the subordinated debt and the preferred shares, and the withholdings that could have been applied for such income.