Criteria for affecting assets and rights to the exercise of an economic activity
Regulations: Articles 29 Law Personal Income Tax and 22 Regulations
In accordance with the regulations of Personal Income Tax , the criteria for affecting assets and rights to the exercise of an economic activity are the following:
1. The goods and rights attached to an economic activity are those necessary to obtain business or professional returns.
In accordance with this criterion, the following assets are considered expressly affected:
The real estate in which the activity is carried out.
The goods intended for the economic and sociocultural services of the personnel serving the activity.
Any other assets necessary to obtain the respective returns.
In accordance with the above, goods intended for private use of the owner of the activity, such as those for recreation or leisure, cannot be considered affected.
Note: In no case are assets representing the participation in the own funds of an entity (shares or participations) and the transfer of capital to third parties such as, for example, all types of bank accounts, considered as assets assigned to an economic activity. .
2. The affected elements must be used only for the purposes of the activity.
In accordance with this characteristic note, those goods and rights that are used simultaneously for economic activities and for private needs cannot be considered affected, unless the use for the latter is accessory and notoriously irrelevant .
In this regard, are considered to be used for private needs in an accessory and clearly irrelevant manner. are the fixed assets acquired and used for the development of economic activity that are intended for the taxpayer's personal use in days. or non-working hours during which the exercise of the activity is interrupted.
This exception is not applicable to passenger cars and their trailers, motorcycles, and aircraft or sports or recreational boats. These assets will only be considered patrimonial elements assigned to the development of an economic activity when they are used exclusively for the purposes thereof, and in no case can they be considered affected if they are also used for private needs, even if said use be accessory and clearly irrelevant.
However, as an exception to the exception, the use for private needs is allowed (provided that it is in an accessory and clearly irrelevant manner) without losing their status as property, of passenger cars and other means of transport that, being included in the list in the previous paragraph, are listed below:
Mixed vehicles intended for the transport of goods.
Those intended for the provision of passenger transport services for consideration.
Those intended for the provision of driver or pilot training services for compensation.
Those intended for professional travel of representatives or commercial agents.
Those intended to be subject to regular and onerous transfer of use.
For these purposes, passenger cars, trailers, mopeds and motorcycles are considered to be those defined as such in the Annex to Royal Legislative Decree 339/1990, of March 2, which approves the articulated text of the Law on Traffic, Circulation of Motor Vehicles and Road Safety and as of January 31, 2016 in the Annex to Royal Legislative Decree 6/2015, of October 30, which approves the consolidated text of the Law on Traffic, Circulation of Vehicles Motor and Road Safety, as well as those defined as mixed vehicles in said annexes and, in any case, the so-called all-terrain or "jeep" type vehicles.
3. The necessary and exclusive use for the purposes of the activity of a divisible asset may only fall on a certain part of it (partial allocation) and not necessarily on its entirety.
In the case of heritage elements that only partially serve the purpose of the activity, the impact will be understood to be limited to that part of them that is actually used in the activity in question. In this sense, only those parts of the heritage elements that are susceptible to separate and independent use of the rest will be considered affected, without in any case the indivisible heritage elements being susceptible to partial affectation.
The partial allocation of a heritage element entails important tax consequences since the income and expenses corresponding to said part of the asset must be included among those corresponding to the economic activity to which it is affected.
To calculate the net return of an economic activity in direct estimation, in the case of using a property partly as a habitual residence, partly for the exercise of the activity, a distinction must be made between the expenses derived from the ownership of the home and the expenses corresponding to the supplies of the property.
In the case of expenses derived from the ownership of the home, such as amortization, IBI, community of owners, etc., they are deductible in proportion to the part of the home affected by the development of the activity and its percentage of ownership in the referred property. .
In the case of expenses corresponding to supplies, rule 5 of section 2 of article 30 of the Income Tax Law must be taken into account regarding deductible expenses for certain supplies when the businessman or professional carries out his activity in his own habitual residence, the commentary of which appears in Chapter 7 of this Manual.
4. Those assets that, being owned by the taxpayer, do not appear in the accounting or official records of the economic activity (record book of investment assets) that the taxpayer is obliged to keep, unless proven otherwise, are not understood to be affected.
5. In the case of marriage, the impact of a property element is conditional on its ownership being exclusive to the spouse who carries out the activity, or whether it is jointly owned or shared by both spouses.
If a common or marital element is used, the owner must consider it fully affected by the activity, even if the aforementioned asset belongs to both spouses. On the other hand, the private assets of the spouse who does not carry out the economic activity cannot be considered assigned to it, but rather are considered transferred assets.
Don VRV, a practicing lawyer, uses the computer in his professional office for private matters on certain holidays.
The use of the computer, which objectively has the character of fixed assets acquired and used for the development of professional activity, on non-business days is expressly included in the Regulation as an exception to the requirement of exclusivity of the use, therefore, in this In this case, the computer can be considered in its entirety as an asset.
Don SAM, a taxi driver, usually uses his vehicle on certain days off to go to the countryside with his family.
The use of the taxi for private needs on non-business days when the normal exercise of the activity is interrupted does not prevent said vehicle from being considered fully affected by the business activity carried out by its owner, as it is a vehicle intended for the transport of passengers for compensation. and appear expressly excepted from the absolute exclusivity requirement generally applicable to passenger cars.
Don AAR, an ophthalmologist, uses two rooms in his home exclusively as a consultation. These rooms, which have 40 m2 and are recorded in the corresponding registration of the Tax on Economic Activities, represent 30 percent of the total surface area of the habitual residence. Can the area used for consultation be considered affected by the professional activity and, consequently, the expenses corresponding to said area be deducted from the income of the activity?
The part of the home used exclusively as a consultation can be considered affected by the professional activity carried out by its owner; Therefore, the specific expenses of this part of the home can be deducted from the full income of the professional activity.