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Practical Manual of Companies 2020.

Freedom to depreciate with job conservation

In the Eleventh Additional Provision of the RDLeg. 4/2004 in the wording given by article 6 of Royal Decree-Law 6/2010, of April 9, on measures to promote economic recovery and employment, it was established the freedom of tax amortization of investments in new elements of tangible fixed assets and real estate investments assigned to economic activities (if these investments are made through financial leasing contracts, with the condition that the purchase option is executed) made available to the taxable person in the tax periods beginning within the years 2009, 2010, 2011 and 2012, with the requirement of maintenance of employment (which is detailed in the rule itself) during the twenty-four months following the start date of the tax period in which the elements have come into operation. For contracts for the execution of works or investment projects that require a period of more than two years between the date of order or start of the investment and the date of its making available or into operation , the freedom of amortization will only be applicable with respect to the ongoing investment made within the tax periods beginning within the aforementioned years.

This eleventh Additional Provision was repealed with effect for investments made as of March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.

However, section 2 of the thirteenth transitional provision of the LIS establishes that taxpayers who had made investments until the entry into force of Royal Decree-Law 12/2012, to which the eleventh Additional Provision of the RDLeg has been applicable. 4/2004, according to the wording given by article 6 of Royal Decree-Law 6/2010, and have amounts pending to be applied, corresponding to the freedom of amortization, they may apply said amounts under the conditions established therein.

For tax periods beginning within the year 2015 , the thirty-fourth transitional provision of the LIS in letter b) maintained the transitional regime applicable to amounts pending amortization related to investments made until March 30, 2012 and benefiting from the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. 4/2004 in the wording given by article 6 of Royal Decree-Law 6/2010, by virtue of which, said pending amounts may be applied in tax periods in which the requirements demanded in article 108 of the RDLeg are not met. 4/2004, with the limit of 40 per one hundred of the tax base prior to its application, to the integration referred to in article 11.12 of the LIS and the compensation of negative tax bases.

This same limit will apply to ongoing investments made until the entry into force of Royal Decree-Law 12/2012, which correspond to new elements commissioned under contracts for the execution of works or investment projects whose execution period requires a period of more than 2 years between the date of commissioning or start of the investment and the date of its making available or operating.

On the other hand, for tax periods starting on January 1, 2016 , taxpayers who made investments until the entry into force of Royal Decree-Law 12/2012, may continue applying the freedom of amortization without the 40 percent limitation . That is, they will be able to amortize the entire value of the outstanding assets.

Filling in form 200

Taxpayers who apply the freedom of amortization under the conditions established in this section must make the following adjustments in boxes [00514] and [00509] «Freedom of amortization with maintenance of employment ( RDL 6/2010 and DT 13.2 LIS)» on page 12 of model 200:

  • In box [00509] of reductions, they will record the excess of amortization that over the accounting amortization is tax deductible in the tax period being declared.

  • In box [00514] of increases, they will enter the amount of the amortizations recorded in the tax period being declared and that had already been deducted in previous tax periods through the corresponding decrease or negative adjustment to the accounting result. Likewise, in the case in which the element on which the freedom of amortization has been applied is transferred, in the tax period in which it is transferred it must be included in this box [00514] the amount of the negative adjustments made previously, and that have not yet been positively integrated into the tax base.