Freedom to depreciate with job conservation
In the Eleventh Additional Provision of the RDLeg. 4/2004 as amended by article 6 of Royal Decree-Law 6/2010 of 9 April on measures boost economic recovery and employment established freedom of depreciation of investments in new elements of tangible fixed assets and real estate investments relating to economic activities ( such investments are made through financial leasing contracts, provided that the purchase option is exercised) made available to the taxpayer in tax periods beginning in 2009, 2010, 2011 and 2012, with the requirement of maintaining employment (detailed in the regulation itself) the following twenty from the start date of the tax period in which the elements came 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 the order or start of the investment and the date of its availability or operation, the freedom of amortization will only be applicable with respect to the investment in progress made within the tax periods initiated within the aforementioned years.
This eleventh Additional Provision was repealed with effect for investments made after March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.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 have made investments until the entry into force of Royal Decree-Law 12/2012, to which the eleventh Additional Provision of the RDLeg has been applied. 4/2004, as amended by article 6 of Royal Decree-Law 6/2010, and have outstanding amounts to apply corresponding to the freedom of amortization, 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 the amounts pending amortization related to investments made until March 30, 2012 and covered by the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. 4/2004 as amended by Article 6 of Royal Decree-Law 6/2010, pursuant to which such outstanding amounts may be applied in tax periods in which the requirements set out in Article 108 of the Royal Decree-Law 6/2010 are not met. 4/2004, with the limit of 40 percent of the tax base prior to its application, to the integration referred to in article 11.12 of the LIS and to 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 the commission or start of the investment and the date of its availability or operation.
However, for tax periods beginning on or after January 1, 2016 , taxpayers who made investments before the entry into force of Royal Decree-Law 12/2012 may continue to apply the freedom of amortization without the 40 percent limitation . That is, they will be able to amortize the entire value of the outstanding fixed 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 form 200:
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In the box [00509] of decreases, you will record the excess amortization over the accounting amortization that is tax deductible in the tax period subject to declaration.
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In box [00514] of increases, they will record the amount of the amortizations recorded in the tax period subject to 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, the amount of the negative adjustments previously made, and which has not yet been positively integrated into the tax base, must be included in this box [00514] .