5. Compensation for dismissal or dismissal of the worker

Note: In all cases, the enjoyment of this exemption is conditional on the real and effective separation of the worker from the company. It will be presumed, unless proven otherwise, that said separation does not occur when in the three years following the dismissal or termination the worker returns to provide services to the same company or to another company linked to that company, in the terms provided for in article 18 of the Corporate Tax Law, provided that in the case in which the relationship is defined based on the relationship of the partners or participants with the entity, the participation is equal to or greater than 25 percent (Art. 1 Regulation IRPF ).

Precisions

• Article 1 of the Personal Income Tax Regulations does not limit the presumption of separation to the character or nature of the relationship, both past and future, but refers generically to the circumstance that the worker "provide services again" to the same company or to another linked to it, making it immaterial whether the new provision of services is framed in an employment relationship, common or special, or in a relationship of a business or professional nature. Therefore, it does not affect anything that the previous relationship that is extinguished and for which the compensation is received, is of a labor nature and the subsequent one that the worker maintains with the company is of a commercial nature.

• For the application of the presumption of article 1 of the Regulation, it is sufficient that in the three years following his dismissal or termination the worker returns to provide services to the same company or to another company linked to it in the terms of the aforementioned provision, without it being necessary the appreciation of a fraudulent purpose in the new provision of services. Consequently, the absence of fraudulent intent in the new relationship with the same company or another related company does not entail the automatic application of the exemption established in article 7.e) of the Personal Income Tax Law (Resolution of the TEAC of 04/22/2021, Claim number 00/02016 /2020, relapse in extraordinary appeal for unification of criteria).

• For the purposes of enjoying the exemption, the “really effective separation of the worker from the company” means that, after his dismissal or termination, he does not return to provide services to the company that, directly or indirectly, are related to the previous responsibilities assumed, The proof of such circumstances corresponds to whoever was an employee of the same, in accordance with the interpretative criteria established in the Supreme Court Sentence number 276/2022, of March 4, of the Second Section of the Contentious-Administrative Chamber ( RED : STS 986/2022).