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Practical Manual of Companies 2020.

Acquisition of holdings in non-resident entities

The fourteenth transitional provision of the LIS establishes that the deduction established for the acquisition of shares of non-resident entities, in section 5 of article 12 of the RDLeg. 4/2004, of March 5, according to the current wording for tax periods beginning before January 1, 2015, will continue to apply, with the conditions and considerations indicated below.

This deduction from the tax base for the acquisition of shares in non-resident entities is also subject to the following conditions and considerations:

  • will not apply to acquisitions of securities representing the participation in equity of entities not resident in Spanish territory, carried out after December 22, 2007, without prejudice to the provisions of Article 1(3) of the European Commission Decision of 28 October 2009 and Article 1(3) of the Commission Decision of 12 January 2011 on tax amortization of financial goodwill for the acquisition of foreign participations, case C-45/2007, regarding acquisitions related to an irrevocable obligation agreed before December 22, 2007. However, in the case of acquisitions of securities that confer the majority of the participation in the own funds of entities resident in another State not a member of the European Union, carried out between December 22, 2007 and May 21, 2011, the deduction may be applied when the existence of explicit legal obstacles to cross-border combinations of companies is demonstrated, in the terms established in sections 4 and 5 of Article 1 of the aforementioned Commission Decision of 12 January 2011, in accordance with the provisions of the third paragraph of article 12.5 of the RDLeg. 4/2004, in its wording given by the sixth Final Provision of Law 31/2011, of October 4, although containing the corresponding affectation for the correction of errors (published in OJEU of November 26, 2011) of the aforementioned Decision of the European Commission of January 12, 2011, according to which, for acquisitions made on December 21, 2007, the aforementioned article 12.5 of the RDLeg may be applied. 4/2004.

  • And since there have been other draftings of article 12.5 of the RDLeg. 4/2004 prior to that given by Law 31/2011, for tax periods beginning on or after January 1, 2015 , the following must be taken into account:

    • In relation to acquisitions of shares of non-resident entities in Spanish territory carried out as of January 1, 2011 , the deduction will only be applicable in admissible cases according to the wording of the third paragraph of the article 12.5 of the RDLeg. 4/2004 given by Law 31/2011.

    • In relation to the acquisitions of shares of non-resident entities in Spanish territory carried out after December 22, 2007 , the corresponding amount related to the pending deduction generated in tax periods beginning before 1 of January 2011 will only be applicable to the cases permitted in the wording of the third paragraph of article 12.5 of the RDLeg. 4/2004 given by Law 31/2011, with the aforementioned affectation.

    • In relation to the shares of non-resident entities in Spanish territory acquired between January 1, 2002 and December 21, 2007 , the corresponding pending amounts may be deducted.

Filling in form 200

Taxpayers who, in tax periods beginning on or after January 1, 2002, have acquired securities representing the participation in the equity of entities not resident in Spanish territory whose income can benefit from the exemption established in article 21 of the RDLeg. 4/2004 or the exemption provided for in article 20 bis of Law 43/1995, must make the following adjustments in boxes [00329] and [00330] «Acquisition of shares of non-resident entities ( DT 14 LIS)» on page 13 of model 200:

  • In box [00330] of reductions will include the amount that does not correspond to the assets and rights of the non-resident entity in Spanish territory, of the difference (positive) between the acquisition price of the participation and the net equity of the investee company on the date of acquisition, in proportion to that participation.

  • And when transmit the aforementioned values , they must enter in the box [00329] of increases the amount that, due to their acquisition, included in box [00330] as a decrease.