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Practical Handbook for Companies 2021

Deduction for investments made by port authorities (art. 38 bis LIS)

1.Scope

The port authorities can deduct the full amount from the tax liability:

  1. The investments and expenses related to:

    1. The infrastructure and services of maritime traffic control.

    2. The services and infrastructures destined to improve the safety of navigation and the movements of ships in the Spanish coastal sea, including the elements of maritime signalling, beaconing and aids to navigation, whose beneficiaries are not principally the users of the port that builds and maintains them.

    3. The road and rail land accesses of general public service, the maritime accesses, the dredging, which benefit the community as a whole and whose beneficiaries are not mainly the users of the port, as well as the infrastructures for the improvement of the general transport networks of common use.

    4. The infrastructures of protection and resistance against extreme weather conditions whose beneficiaries are not primarily port users.

    5. Maritime rescue services and infrastructures associated with the exercise of public authority, in so far as such infrastructures are not operated commercially, and the training of the public services responsible for emergency, safety and rescue, in so far as such training is not mandatory for companies.

    6. The elaboration and implementation of security and safety plans, insofar as these costs are not associated with mandatory security requirements with which all companies must comply, and the handling of civil protection emergencies, in both cases, when these activities are associated with the exercise of public authority and provided that the beneficiaries are not primarily the port users.

    7. The services and infrastructures of defence against fire, landslides and other risks related to civil protection, associated with the exercise of public authority, which are not commercially exploited, which are not compulsory for businesses, which benefit the community as a whole and whose beneficiaries are not primarily the users of the port.

    8. The services and infrastructure used exclusively by the Security Forces and Corps and the Port Police in the exercise of public authority.

    9. Health services and infrastructures for the attention to people in situations of vulnerability, provided that the infrastructures are not used for the port's economic activities.

    10. Infrastructures and services for customs control of goods , for border inspection required by law in the areas of animal health, plant health, external health and industrial safety and public interest, and those related to passenger and immigration control.

    11. Infrastructures and services for the surveillance of pollution, environmental emergencies and pollution control associated with the exercise of public authority, the costs of which are not legally chargeable to the party causing the emergency, nor are they costs incurred simply to comply with the legally obligatory regulations for all companies, the decontamination of land that is not destined for the development of an economic activity, the scrapping of abandoned vessels and equipment, the treatment of which legally falls to the port authority because the procedures aimed at identifying the private interest in their scrapping, removal or scrap, and the sanitation, general port cleaning and removal of waste other than that generated by port users, such as waste generated by ships, cargo residues and the like.

    12. Services and infrastructures carried out for international organisations as a consequence of obligations contracted by the Kingdom of Spain within the framework of an international treaty.

    13. Services and infrastructures dedicated to National Defence.

    14. The services and facilities used for the development of scientific activities whose results are not intended for economic exploitation and the monitoring and forecasting of the physical environment for research and meteorological information purposes whose results are not exploited commercially.

    15. The services of lighting of common areas for the benefit of the community, for public and open use, the beneficiaries of which are not primarily the users of the port.

    16. The actions of protection or correction of coastal drift whose beneficiaries are not primarily port users.

    17. Investments and services related to the promotion of culture and historical and cultural heritage, including those foreseen in section 1 of article sixty-eight of Law 16/1985 of 25 June 1985 on Spanish Historical Heritage, in cases where the public works are not related to the economic activity of the port authority, as well as actions for the rehabilitation of assets with cultural protection that are not commercially exploited and benefit society as a whole.

    18. The actions of urbanisation and in development and revitalisation of public landor for public use without commercial exploitation.

  2. Investments and expenditure incurred for the construction, replacement or improvement of the infrastructures of seaports, for the construction, replacement or improvement of access infrastructures to them or for dredging activities, under the terms and conditions provided for in Chapter I and Articles 56b and 56c of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty.

    The amount of this deduction shall be the amount resulting from applying to such investments and expenditure the maximum allowable aid intensity percentage calculated in accordance with Articles 56b and 56c respectively of Regulation (EU) No 651/2014.

  3. Investments above the thresholds set out in Article 4(1)(ee) and (ff) of Regulation (EU) No 651/2014 may be deducted to the extent that the European Commission has declared their compatibility with the internal market in accordance with the provisions of Article 108(3) of the Treaty on the Functioning of the European Union and the conditions laid down by the Commission in the relevant Decision are met.This deduction may only be applied from the tax period in which the European Commission has declared the investments giving rise to the deduction to be compatible.

    The amount of this deduction will be the amount resulting from applying to these investments the percentage of maximum aid intensity authorised by the Commission.

The investments or expenses subject to this deduction for investments made by the port authorities, must be reduced by the amount of subsidies received.

2.Particularities of the deduction

The port authorities must keep specific accounting and documentary records to identify the expenditure and investments on which the deduction applies.

This deduction is excluded from the limits of 25 and 50 per cent referred to in Article 39.1 of the LIS, and therefore this deduction will not be taken into account for the purposes of calculating this limit.

Amounts not deducted in the tax period may be applied in the tax returns for tax periods ending within 15 years and thereafter.

3.Filling in form 200

In application of the provisions of article 38 bis of the LIS, taxpayers must enter in box [02315] "Deduction for investments and expenses incurred by the port authorities" on page 14 of form 200, the amount of the deduction for investments and expenses incurred by the port authorities that they apply in the tax period being declared.