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Practical Manual for Companies 2020.

Freedom to depreciate

Regulation: Article 102 LIS

Remember:

This assumption of freedom of amortization in article 102 of the LIS is incompatible with the new assumption of freedom of amortization regulated in the Sixteenth Additional Provision of the LIS , so small entities will have to choose to apply one of the two tax incentives.

1. Requirements

Small companies may apply for free amortization, in accordance with the following conditions:

  • They must be considered small companies in the tax period in which the investment is made available.

  • These must be new items of tangible fixed assets or real estate investments assigned to economic activities.

    These elements must be found in any of the following situations:

    • Acquired from third parties and made available to the company in the tax period in which it has reduced size status.

    • Commissioned through a contract for the execution of works signed in the tax period in which it has the status of a small company and made available to the company within 12 months following its conclusion.

    • Built by the company itself with the same conditions established in the two previous points.

    This regime will also apply to these items when they have been the subject of a financial leasing contract and made available to the company in the tax period in which it has the status of small size, provided that the purchase option is exercised.

  • During the twenty-four months following the date of the beginning of the tax period in which the acquired assets are put into operation, the total average workforce of the company must increase with respect to the average workforce of the previous twelve months and said increase must be maintained for an additional period of another 24 months.

    For the calculation of the company's total average workforce and its increase the number of people employed must be taken into account, in accordance with the terms established by labor legislation, taking into account the contracted working day in relation to the full working day. Since there are no specific requirements regarding the type of employment contract, it will be irrelevant for the purposes of this calculation whether the contract is open-ended, temporary, training, etc.

    Likewise, the contracted worker who gives the right to one of the deductions provided for in article 37 of the LIS will not be counted for the purposes of the increase in staff established in article 102 of the LIS.

  • The freedom of amortization will be applicable from the entry into operation of the elements that can benefit from it.

  • Regarding assets that can be freely amortized the accounting entry principle of article 11.3 will not apply. 1 of the LIS, according to which expenses that have not been recorded in the profit and loss account or in a reserve account will not be tax deductible if so established by a legal or regulatory norm.

    Therefore, although the excess tax amortization resulting from the application of the freedom of amortization is not accounted for, it is allowed to be deducted from the taxable base of the Corporate Tax.

2. Investment limit

The maximum investment amount that can be eligible for free depreciation is the result of multiplying the amount of 120,000 euros by the increase in the company's total average workforce during the 24 months following the date of the start of the tax period in which the acquired assets come into operation with respect to the average workforce of the previous 12 months, calculated with two decimal places.

The freely amortized amount cannot be higher than the acquisition value or production cost of the elements that are freely amortized.

3. Non-compliance

In the event that the obligation to increase or maintain the workforce is not fulfilled, the full amount corresponding to the excess deducted plus the corresponding late payment interest must be paid.

The payment of the full amount and the late payment interest will be made jointly with the self-assessment corresponding to the tax period in which one or the other obligation has been breached (for information on payment of amounts and late payment interest due to failure to comply with the requirements to enjoy tax benefits, see the content of boxes [00615] and [00616] "Increase due to loss of tax benefits from previous periods" and of boxes [00617] and [00618] "Late payment interest" on page 14 bis of form 200, developed in Chapter 6 of this Practical Manual).