Special tax deferral regime
Content of the special tax deferral regime and requirements for application :
When the amount obtained as a result of the redemption or transfer of units or shares in collective investment institutions is used for the acquisition or subscription of other shares or units in said institutions, it will not be necessary to compute the capital gain or loss , with the new shares or participations subscribed retaining the value and date of acquisition of those transferred or redeemed.
This tax deferral regime in the taxation of capital gains is only applicable in the following cases :
1. In the redemptions of shares in collective investment institutions that are considered investment funds.
2. In the transfer of shares in collective investment institutions with corporate form, provided that the following two conditions are met:
That the number of partners of the collective investment institution whose shares are transferred is greater than 500.
That the taxpayer has not participated, at any time within the 12 months prior to the date of transfer, in more than 5 percent of the capital of the collective investment institution.
For these purposes, the taxpayer must document this circumstance to the entities through which the transfer or reimbursement operations and acquisition or subscription of the shares are carried out.
This special tax deferral regime is also applicable to partners or participants in collective investment institutions, regulated by Directive 2009/65/EC, of July 13, of the European Parliament and the Council, other than those established in havens or territories considered tax havens, incorporated and domiciled in a Member State of the European Union and registered in the special registry of the National Securities Market Commission , for the purposes of its marketing by entities resident in Spain that meet the following requirements:
That the acquisition, subscription, transmission and redemption of shares or participations be carried out through marketing entities registered with the National Securities Market Commission.
That, in the event that the collective investment institution is structured into compartments or sub-funds, the number of partners and the maximum percentage of participation refer to each compartment or sub-fund marketed.
Note: Directive 2009/65/EC, of July 13, of the European Parliament and of the Council, in its article 117 repeals, with effect from July 1, 2011, Directive 85/611/EEC and establishes that references to the Repealed Directive will be understood to be made to the aforementioned Directive 2009/65/EC in accordance with the correspondence table contained in its Annex IV.
Cases in which the tax deferral regime is not applicable
The tax deferral regime is not applicable in the following cases:
1. When the transfer or redemption or, where applicable, the subscription or acquisition has as its object shares representing the assets of listed investment funds , that is, those whose shares are admitted to trading on stock market in accordance with the provisions of article 79 of the Regulation of Law 35/2003, of November 4, on collective investment institutions, approved by Royal Decree 1082/2012, of July 13 ( BOE of July 20), or whose object is shares of the so-called listed index variable capital investment companies (acronym SICAV listed index), in accordance with the same precept.
Furthermore, as of January 1, 2022, this deferral regime will not be applicable when the redemption or transfer or, where applicable, the subscription or acquisition has as its object shares and participations in similar collective investment institutions to listed investment funds or companies of the same type mentioned in the previous paragraph, regardless of the regulated market or multilateral trading system in which they are listed and the composition of the index that they reproduce, replicate or take as reference. In these cases, the capital gain or loss obtained as a result of the transfer or redemption of this type of shares must always be computed.
However, the thirty-sixth transitional provision of the Personal Income Tax Law establishes a transitional regime that allows the deferral to continue to be applied to shares or participations in foreign listed investment funds and companies as long as they have been acquired before January 1, 2022, with with the exception that the reinvestment must be made in other Collective Investment Institutions other than listed investment funds and companies.
Nor is the deferral regime applicable in the case of participants in the Bank Asset Funds, in accordance with the provisions of the seventeenth Additional Provision of Law 9/2012, of November 14, on the restructuring and resolution of credit institutions.
2. When, by any means, the amount derived from the reimbursement or transfer of shares or participations of collective investment institutions is made available to the taxpayer.
Atención: la Ley 11/2021, de 9 de julio, de medidas de prevención y lucha contra el fraude fiscal, con efectos desde 1 de enero de 2022, modifica el artículo 94 de la Ley del IRPF con el fin de homogeneizar el tratamiento de las inversiones en determinadas instituciones de inversión colectiva, conocidas como fondos y sociedades de inversión cotizados (ETF, por sus siglas en inglés), con independencia del mercado, nacional o extranjero, en el que coticen. Así se extiende a las instituciones de inversión colectiva cotizadas que coticen en bolsa extranjera el tratamiento de las que cotizan en bolsa española respecto a la no aplicabilidad del régimen de diferimiento.
Mrs. FLM has requested on July 10, 2022, the management company of the chattel investment fund "Z" to carry out the necessary procedures to carry out the transfer of 10 shares it owns in said fund to the chattel investment fund "X".
The transfer of units from one fund to another is carried out on the same day, July 10, 2022, with their net asset value on that date being 6,000 euros per unit.
The value and acquisition date of the transferred shares are as follows:
|Date of acquisition
|Price / participation
Determine the tax treatment applicable to the transfer of shares carried out between both real estate investment funds.
Once the requirements for the application of the tax deferral regime are met, the capital gain or loss revealed in the transfer operation will not be computed, the quantification of which is determined by the difference between the net asset value applicable on the date of the transfer. (6,000 x 10 = 60,000 euros) and the acquisition value of the shares (53,110 euros).
For the purposes of a future transfer or reimbursement of the shares acquired on July 10, 2022, these will retain the original date and value of acquisition, so at that time you must pay tax on the capital gain or loss obtained.