Rules for computing the maximum magnitude of exclusion
Regulations: See art.3.1. d) Order HFP /1335/2021, of December 1 ( BOE of December 2).
In order to determine for each activity whether or not the magnitude corresponding to it exceeds the maximum quantities indicated in the previous relationship, the following particularities must be taken into account:
a. The magnitude “employees ” will include all people, salaried or non-salaried, who actually work in the main activity and in any other accessory activity included in the regime. Its amount will be determined by the weighted average corresponding to the period in which the activity was carried out during the immediately preceding year.
To determine the weighted average, the following rules will be applied exclusively:
Only the number of hours worked during the period in which the activity was carried out during the immediately preceding year will be taken into account.
A non-salaried person will be counted as , someone who works in the activity for at least 1,800 hours/year. When the number of hours of work per year is less than 1,800, the proportion between the number of hours actually worked in the year and 1,800 will be estimated as the amount of the non-salaried person.
However, the entrepreneur will be counted as a non-salaried person. In those cases in which dedication of less than 1,800 hours/year can be accredited for objective reasons, such as retirement, disability, plurality of activities or temporary closure of the operation, the effective time dedicated to the activity will be computed. In these cases, for the quantification of the management, organization and planning tasks of the activity and, in general, those inherent to its ownership, the entrepreneur will be counted at 0.25 people/year, except when a higher or lower effective dedication.
The person who works the number of annual hours per worker established in the corresponding collective agreement or, failing that, 1,800 hours/year will be counted as a salaried person. When the number of hours of work per year is lower or higher, the amount of the employee will be estimated as the proportion between the number of hours actually worked and those established in the collective agreement or, failing that, 1,800.
b. The magnitudes “vehicles ” and “ punts ” refer, respectively, to the maximum number of vehicles or punts that are used on any day of the year for the development of the activity. main and any other accessory activity included in the method.
Important : In the first year of carrying out the activity, the number of people employed or vehicles or punts at the beginning of the activity will be taken into account.
When in a calendar year the maximum magnitude is exceeded in any activity, the taxpayer will be excluded, starting from the immediately following year , from the objective estimation method, and must determine its net return by the method of direct estimation, simplified modality, provided that the requirements established for said modality are met and its application is not waived, in which case the normal modality of said method will be applicable.
The requirements established for the application of the simplified modality of the direct estimation method, and the effects of waiving it, are discussed in Chapter 7 .
To determine the exclusive magnitudes of the objective estimation method, not only the specific magnitude corresponding to the economic activities carried out by the taxpayer, but also those corresponding to those carried out by the spouse, descendants and ascendants, as well as by the entities in income allocation regime in which any of the above participate, in which the following circumstances occur:
a. That the economic activities carried out are identical or similar .
For these purposes, it will be understood that the economic activities classified in the same group in the Tax on Economic Activities are identical or similar.
b. That there is a common direction for such activities, sharing personal or material means .
In the case of entities under the income attribution regime not only the specific magnitude corresponding to the economic activity carried out by the entity itself under the attribution regime, but also those corresponding to those developed must be computed. by its partners, heirs, community members or participants; their spouses, descendants and ascendants; as well as by other entities under the income attribution regime in which any of the above persons participate, in which the aforementioned circumstances occur.