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Practical Income Manual 2022.

In general: transfer of unlisted securities

Specific valuation standard

When the alteration in the value of assets results from the transfer for consideration of securities not admitted to trading in any of the regulated securities markets defined in Directive 2014/65/EU of the European Parliament and of the Council, of May 15, 2014, relating to financial instrument markets ( OJEU of June 12), which are representative of the participation in the equity of companies or entities, the capital gain or loss will be computed by the difference between its acquisition value and the transmission value.

Please note that article 37.1.b) of the Personal Income Tax Law refers to the values defined in Directive 2004/39/ EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, but this Directive has been repealed with effect from 3 January 2017 by Directive 2014/65/ EU of the European Parliament and of the Council, of May 15, 2014, relating to markets in financial instruments. This, in its article 94, provides that references to Directive 2004/39/EC will be understood to be made to Directive 2014/65/ EU .

• Transmission value

The transfer value will be considered, unless there is proof that the amount actually paid corresponds to what would have been agreed upon by independent parties under normal market conditions, the greater of the following two:

  1. The value of the net equity that corresponds to the values transmitted resulting from the balance sheet corresponding to the last fiscal year closed prior to the date of accrual of Personal Income Tax .

  2. The result of capitalizing at the rate of 20 percent the average of the results of the three fiscal years closed prior to the accrual date of the Personal Income Tax . For this purpose, dividends distributed and allocations to reserves, excluding those for adjustment or updating of balance sheets, will be recorded as profits.

    The transfer value thus calculated will be taken into account to determine the acquisition value of the securities or shares corresponding to the acquirer.

    This rule is not applicable when, since the investee company was established in the first or second fiscal year closed prior to the date of accrual of personal income tax , as of this latest date, the results of "the three fiscal years closed prior to the date of accrual of personal income tax" are not available.

    On the contrary, this rule does apply when the investee company had been inactive without obtaining a loss or profit in one or some of the three fiscal years closed prior to the date of accrual of the Personal Income Tax , the result of the year or years in which it had been inactive must be taken as null, and then averaged by three. Resolution of the Economic-Administrative Court (TEAC) of April 26, 2022, Claim number 00/7287/2021, relapsed into an extraordinary appeal for the unification of criteria.

• Acquisition value

When determining the acquisition value, the following particularities must be taken into account:

  1. Acquisition value in case of transfer of subscription rights .

    To determine the acquisition value of the shares transferred, only the amount of the subscription rights sold before March 23, 1989, the date of entry into force of Royal Decree-Law 1/1989, of March 22, will be deducted ( BOE of March 23).

    The sale of pre-emptive subscription rights derived from this class of shares determines that the amount obtained is in any case considered a capital gain for the transferor in the tax period in which said transfer occurs , without being able to compute, in these cases, an acquisition value of said rights and for which the period of permanence will be taken as the period between the moment of acquisition of the value from which the right comes and the transfer of the latter. .

  2. Acquisition value of the partially redeemed shares .

    In the case of partially released shares, their acquisition value will be the amount actually paid by the taxpayer.

  3. Acquisition value of the fully paid-up shares .

    In the case of fully paid-up shares, the acquisition value, both of these and the corresponding ones, will be the result of dividing the total cost among the number of titles, both the old ones and the corresponding released ones. The latter will have, for the purposes of the permanence period, the same seniority as the shares of origin.

• Identification of the titles transmitted

In order to be able to individualize the transferred titles, especially when not all of those possessed have been transferred, the Law establishes a special criterion, according to which when there are homogeneous values and not all of them are transferred, it is understood that those transferred by the taxpayer are those who acquired first (FIFO criterion).