Special tax deferral regime

Contents of the special tax deferral regime and requirements for application :

When the amount obtained as a result of the reimbursement or transfer of shares or interests in collective investment institutions is used to acquire or subscribe to other shares or interests in said institutions, the capital gain or loss will not be computed, and the new shares or interests subscribed will retain the value and date of acquisition of those transferred or reimbursed.

This tax deferral regime for the taxation of capital gains is only applicable in the following cases :

1. In the repayment of shares in collective investment institutions that are considered investment funds.

2. In the case of transfers of shares in collective investment institutions with corporate form, provided that they meet the following two conditions:

• 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 the transfer, in more than 5% of the capital of the collective investment institution.

  For these purposes, the taxpayer must provide documentary evidence of this circumstance to the entities through which the transfer or reimbursement operations and the 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 13 July of the European Parliament and of the Council, other than those established in tax havens or territories considered to be tax havens, established and domiciled in a Member State of the European Union and registered in the special register of the National Securities Market Commission, for the purposes of their marketing by entities resident in Spain that meet the following requirements:

• That the acquisition, subscription, transfer and reimbursement of shares or interests is carried out through marketing entities registered with the National Securities Market Commission.

• That, in the event that the collective investment institution is structured in compartments or sub-funds, the number of partners and the maximum percentage of participation refers to each compartment or sub-fund marketed.

Note: Directive 2009/65/EC of 13 July of the European Parliament and of the Council, in Article 117, repeals, with effect from 1 July 2011, Directive 85/611/EEC and establishes that references to the repealed Directive shall be construed as references to Directive 2009/65/EC in accordance with the correlation table set out in Annex IV thereof.

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 reimbursement or, where appropriate, 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 the stock exchange in accordance with the provisions of article 79 of the Regulations 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 has as its object shares of the so-called listed index variable capital investment companies (acronym SICAV listed index), in accordance with the same provision.

Furthermore, as of January 1, 2022, this deferral regime will not apply when the redemption or transfer or, where appropriate, the subscription or acquisition concerns shares and interests in collective investment institutions similar to listed investment funds or companies of the same type mentioned in the previous paragraph, regardless of the regulated market or multilateral trading system on which they are listed and the composition of the index that they reproduce, replicate or take as a reference. In these cases, the capital gain or loss obtained as a result of the transfer or reimbursement 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 interests in foreign listed investment funds and companies provided that they have been acquired before January 1, 2022, with the exception that the reinvestment must be made in Collective Investment Institutions other than listed investment funds and companies.

The deferral regime is also not applicable in the case of participants in 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 interests 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.