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Practical Manual for Companies 2022.

Freedom to depreciate without job conservation

In the Eleventh Additional Provision of the RDLeg. 4/2004 as amended by Section Four of Article 1 of Royal Decree-Law 13/2010, of 3 December, on fiscal, labour and liberalising actions to encourage investment and job creation, established the freedom of tax amortisation of investments in new elements of tangible fixed assets and real estate investments relating to economic activities (if such investments are made through financial leasing contracts, on the condition that the purchase option is exercised) made available to the taxpayer in the tax periods commencing 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 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.

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

However, employment maintenance requirements were enforceable when the period, greater than two years, between the date of the order or start of the investment and the date of provision or operation of the contracts for the execution of works or investment projects, reached tax periods beginning within the years 2009 and 2010.

This eleventh Additional Provision was repealed with effect for investments made after March 31, 2012, by the sole repealing provision of Royal Decree-Law 12/2012, of March 30.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 had made investments until the entry into force of Royal Decree-Law 12/2012, on which the freedom of amortization provided for in the eleventh Additional Provision of the RDLeg. applied. 4/2004, as amended by Section Four of Article 1 of Royal Decree-Law 13/2010, 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 relating 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 Section Four of Article 1 of Royal Decree-Law 13/2010, 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 are not met. 4/2004, with the limit of 20 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 20 percent limitation . That is, they will be able to amortize the entire value of the outstanding fixed 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 form 200:

  • In the box [00551] of decreases, you will record the excess amortization over the accounting amortization that is tax deductible in the tax period subject to declaration.

  • In box [00516] of increases, you 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 event that 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 not yet positively integrated into the tax base must be included in this box [00516] .