Special tax deferral regime
Requirements
The special tax deferral regime provided for in articles 76 to 89 of Chapter VII of Title VII of the LIS , applies to taxpayers of IRPF who make the contributions indicated below, provided that the entity receiving the contribution is resident in Spanish territory or carries out activities therein through a permanent establishment to which the contributed assets are assigned and provided that, once the contributions have been made, the taxpayer participates in the equity of the entity receiving the contribution by at least 5%.
Regarding the LIS see Law 27/2014, of November 27, on Corporate Tax.
Contributions must consist of:
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Contributions from branches of activity, understood as the set of elements that are capable of constituting an autonomous economic unit.
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Contributions of elements affected by economic activities.
In both cases, the taxpayer must keep accounts of his or her economic activity in accordance with the provisions of the Commercial Code.
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Contributions of shares or corporate interests.
In this case, in accordance with the provisions of article 87.1, letter c), of the LIS , in addition to the requirements indicated at the beginning of this section, the following must be met:
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That the entity whose share capital they represent is not subject to the special regime for Spanish or European economic interest groups and temporary business associations, provided for in the LIS nor does it have as its main activity the management of movable or immovable assets in the terms provided for in article 4.eight.two of Law 19/1991, of June 6, on the Wealth Tax.
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That they represent a share of at least 5% of the entity's equity.
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That they are held uninterruptedly by the contributor during the year prior to the date of the public document in which the contribution is formalized.
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Valuation of assets received
Capital gains arising from non-monetary contributions are not included in the taxpayer's tax base. For the purposes of future transfers, the shares or interests acquired are valued at the same tax value as the branch of activity or the assets contributed (value determined in accordance with the provisions of IRPF ) and the date of acquisition of the contributed asset is taken as the seniority thereof.
Important: The special tax deferral regime will not apply when the operation carried out has as its main objective tax fraud or evasion. In particular, the regime will not apply when the transaction is not carried out for valid economic reasons, such as the restructuring or rationalisation of the activities of the entities involved in the transaction, but for the sole purpose of obtaining a tax advantage.
Obligation to communicate
The realization of the indicated contributions must be communicated to the Tax Administration with the indication, where appropriate, of the non-application of this special tax regime of Chapter VII of Title VII of the LIS . The communication must be submitted by the acquiring entity, unless it is not resident in Spanish territory, in which case said communication will be made by the transmitting entity. However, if neither of them (neither the acquiring entity nor the transferring entity) have their tax residence in Spain, the obligation to communicate will fall on the shareholders of the transferring entity, provided that they are resident in Spanish territory.