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Practical Handbook for Companies 2021

Freedom to depreciate without job conservation

In the 11th additional provision of the RDLeg. 4/2004 in the wording given by section Four of Article 1 of Royal Decree-Law 13/2010, of 3 December, on tax, labour and deregulation measures to promote investment and job creation, established the freedom of tax depreciation of investments in new items of tangible fixed assets and investment property used for economic activities (if these investments are made under finance lease contracts, on condition that the purchase option is exercised) made available to the taxpayer in tax periods commencing in 2011, 2012, 2013, 2014 and 2015.For contracts for the execution of works or investment projects which require a period of more than two years between the date of commissioning or commencement of the investment and the date on which it is made available or put into operation, the freedom from depreciation shall only apply in respect of ongoing investment made within tax periods commencing within those years.

Under this regime the requirements for maintaining employment established in the wording given to the eleventh additional provision of the LIS by Royal Decree-Law 6/2010 of 9 April were not required, even if the items had been placed at the disposal of the taxpayer from 3 December 2010 until the end of the last tax period prior to that commencing on or after 1 January 2011, to which the freedom of depreciation may thus be applied in tax periods commencing on or after 1 January 2011.

On the other hand, did meet the employment maintenance requirements when the period of time between the date of commissioning or commencement of the investment and the date on which the contracts for the execution of works or investment projects were made available or put into operation was longer than two years and covered tax periods commencing in 2009 and 2010.

This eleventh additional provision was repealed with effect for investments made on or after 31 March 2012 by the sole repealing provision of Royal Decree-Law 12/2012 of 30 March 2012.

However, section 2 of the thirteenth transitional provision of the LIS establishes that taxpayers who had made investments up to the entry into force of Royal Decree-Law 12/2012, to which the freedom of depreciation provided for in the eleventh additional provision of RDLeg.4/2004 in the wording given by section Four of Article 1 of Royal Decree-Law 13/2010, they may continue to freely amortise the amounts pending application, under the conditions established therein.

For tax periods starting on or after 1 January 2015, the thirty-fourth transitional provision of the LIS in letter b) maintained the transitional regime applicable to the amounts pending depreciation relating to investments made up to 30 March 2012 and covered by the freedom of depreciation provided for in the eleventh additional provision of RDLeg.4/2004 in the wording given by section Four of Article 1 of Royal Decree-Law 13/2010, by virtue of which such outstanding amounts may be applied in tax periods in which the requirements of Article 108 of RDLeg.4/2004, with the limit of 20 per cent of the tax base prior to its application, to the integration referred to in Article 11.12 of the LIS and to the offsetting of tax losses.

The same limit shall apply to investments in progress up to 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 commencement of the investment and the date on which it is made available or put into operation.

However, for tax periods starting on or after 1 January 2016, taxpayers who made investments before the entry into force of Royal Decree-Law 12/2012 may continue to apply the freedom of depreciation without the 20 per cent limitation.In other words, they will be able to write off the full value of the outstanding fixed assets.

Filling in form 200

When taxpayers apply the freedom of depreciation in any of the cases included in this section, they must make the following adjustments in the boxes [00516] and [00551] "Freedom of depreciation without maintenance of employment (RDL 13/2010 and DT 13ª.2)" on page 12 of form 200:

  • In the box [00551] of decreases shall enter the excess of depreciation over the accounting depreciation, which is tax deductible in the tax period being declared.

  • In the box [00516] of increases shall enter the amount of the depreciations posted in the tax period being declared and which had already been deducted in previous tax periods by means of the corresponding decrease or negative adjustment to the accounting result.Likewise, in the case of , in the tax period in which the item on which the freedom of depreciation has been applied is transferred, the amount of the negative adjustments made previously and not yet positively included in the tax base should be included in this box [00516].