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Practical Manual of Companies 2020.

Freedom to depreciate without job conservation

In the Eleventh Additional Provision of the RDLeg. 4/2004 in the wording given by section Four of article 1 of Royal Decree-Law 13/2010, of December 3, on actions in the fiscal, labor and liberalizing fields to promote investment and job creation, the freedom of tax amortization of investments in new elements of tangible fixed assets and real estate investments assigned to economic activities was established (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 2011, 2012, 2013, 2014 and 2015. 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.

In this regime the employment maintenance requirements established in the wording given to the eleventh Additional Provision of the LIS by the Royal Decree were not required. Law 6/2010, of April 9, even if the elements had been made available to the taxable person from December 3, 2010 until the conclusion of the last tax period prior to the one that begins on January 1, 2011, to which the freedom of amortization may thus be applied in tax periods beginning on or after January 1, 2011.

On the other hand, the employment maintenance requirements were required when the period, greater than two years, between the date of commissioning or start of the investment and the date of making it available or in operation of contracts for the execution of works or investment projects, reaches tax periods that began within the years 2009 and 2010.

This eleventh Additional Provision was repealed with effect for investments made as of March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.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 it applied the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. 4/2004 in the wording given by section Four of article 1 of Royal Decree-Law 13/2010, they may continue to freely amortize the amounts pending application, under the conditions established therein.

For tax periods beginning on or after January 1, 2015 , the thirty-fourth transitional provision of the LIS in letter b) maintained the transitional regime applicable to the 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 section Four of article 1 of Royal Decree-Law 13/2010, by virtue of which said pending amounts may be applied in tax periods in which the requirements demanded in article 108 of the RDLeg. 4/2004, with the limit of 20 percent of the tax base prior to its application, 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 beginning on or after January 1, 2016 , taxpayers who made investments until the entry into force of Royal Decree-Law 12/2012 may continue to apply the freedom of amortization without the 20 percent limitation . That is, they will be able to amortize the entire value of the outstanding assets.

Filling in form 200

When taxpayers apply the freedom of amortization in any of the cases included in this section, they must make the following adjustments in boxes [00516] and [00551] «Freedom of amortization without maintaining employment ( RDL 13/2010 and DT 13.2)» on page 12 of model 200:

  • In box [00551] of reductions, they will record the excess of amortization that over the accounting amortization is tax deductible in the tax period being declared.

  • In the box [00516] of increases, they will enter the amount of the amortizations recorded in the subject tax period declaration 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 [00516] the amount of negative adjustments made previously and not yet positively integrated into the tax base.