Exemption of dividends or holdings in the profits of resident and non-resident entities in Spanish territory

1. Article 21.1 of the LIS establishes that dividends or profit shares of entities will be exempt when the following requirements are met:

   1. That the percentage of participation , direct or indirect, in the capital or in the equity of the entity is at least 5 percent. In the fortieth transitional provision of the LIS, a transitional regime is added to be applied for a period of 5 years to the shares acquired in the tax periods initiated before January 1, 2021 , which had an acquisition value greater than 20 million euros, without reaching the aforementioned percentage of 5 percent.

      • This participation must be held uninterruptedly during the year prior to the day on which the profit to be distributed becomes due or, failing that, it must be held subsequently for the time necessary to complete said period. For the calculation of the term, the period in which the participation has been held uninterruptedly by other entities that meet the circumstances referred to in article 42 of the Commercial Code to form part of the same group of companies is also taken into account, regardless of the residence and the obligation to prepare consolidated annual accounts.

      • In the event that the participating entity obtains dividends, profit shares or income derived from the transfer of securities representing the capital or equity of entities in more than 70 percent of its income, the application of this exemption with respect to said income will require that the taxpayer have an indirect participation in those entities that meets the requirements indicated in article 21.1.a) of the LIS. The aforementioned percentage of income is calculated on the consolidated result of the fiscal year, when the directly controlled company is the parent company of a group, according to the criteria established in article 42 of the Code of Commerce, and draws up consolidated annual accounts. Nevertheless, an indirect stake in second and subsequent-level subsidiaries must respect the minimum percentage of 5%, unless said subsidiaries fulfil the circumstances referred to in article 42 of the Code of Commerce to form part of the same group of companies as the directly controlled company, and draw up consolidated accounting statements.

        The requirement of the previous paragraph is not applicable when the taxpayer proves that the dividends or shares in profits received have been integrated into the gross tax base of the directly or indirectly controlled company as dividends, shares in profits or income derived from the transfer of securities that represent the entities' own capital or funds, without having the right to apply an exemption or deduction system due to double taxation.

   2. Additionally, in the case of participations in the capital or equity of entities not resident in Spanish territory , that the participating entity has been subject to and not exempt from a foreign tax of an identical or analogous nature to this Tax at a nominal rate of at least 10 percent in the year in which the profits that are distributed or in which the company participates were obtained, regardless of the application of any type of exemption, bonus, reduction or deduction on them.

      • For these purposes, foreign taxes that have been intended to tax the income obtained by the participating entity will be taken into account, regardless of whether the object of the tax is the income, revenue or any other indicative element thereof.

      • This requirement will be deemed to be met when the subsidiary is registered in a country with which Spain has an agreement to avoid double international taxation, which is applicable and contains a data exchange clause.

      • In no case will this requirement be deemed to be met when the participating entity is resident in a country or territory classified as a non-cooperative jurisdiction, except when it is resident in a Member State of the European Union and the taxpayer proves that its incorporation and operation respond to valid economic reasons and that it carries out economic activities.

        In the event that the non-resident company obtains dividends, shares in profits or income derived from the transfer of securities that represent the entities' own capital or funds, the application of this exemption with respect to said income will entail that the requirements in this point are fulfilled by, at least, the controlled company.

      In the event that the participating entity, whether resident or non-resident in Spanish territory, obtains dividends, profit shares or income derived from the transfer of securities representing the capital or equity of entities from two or more entities in respect of which only one or some of them meet the requirements indicated in letters a) or a) and b) above, the application of the exemption will refer to that part of the dividends or profit shares received by the taxpayer in respect of entities in which the aforementioned requirements are met.

   Note:

   The exemption provided for in this section 1 shall not apply to the amount of those dividends or shares in profits whose distribution generates a tax-deductible expense for the paying entity.

   For the purposes of applying the provisions of this section, in the case of distribution of reserves, the designation contained in the corporate agreement shall be taken into account and, failing that, the last amounts paid to said reserves shall be considered to have been applied.

2. According to the provisions of article 21.2 of the LIS :

   1. Dividends or profit shares will be considered those derived from securities representing the capital or equity of entities, regardless of their accounting consideration.

   2. The remuneration corresponding to participating loans granted by entities that form part of the same group of companies according to the criteria established in article 42 of the Commercial Code, regardless of residence and the obligation to prepare consolidated annual accounts, will be considered as exempt dividends or profit shares, unless they generate a tax-deductible expense in the paying entity.

   3. The exemption provided for in article 21.1 of the LIS will not apply in relation to dividends or profit shares received, the amount of which must be delivered to another entity on the occasion of a contract that deals with the securities from which they originate, recording an expense to that effect.

      The entity receiving said amount under the aforementioned contract may apply the exemption provided for in article 21.1 of the LIS provided that the following requirements are met:

      • Keep the accounting record of said securities.

      • Prove that the dividend has been received by the other contracting entity or an entity belonging to the same group of companies of either entity, in accordance with the terms established in article 42 of the Commercial Code.

      • That the conditions established in article 21.1 of the LIS are met for the application of the exemption.

   The seventeenth transitional provision of the LIS establishes that the provisions of article 21.2 of the LIS , are not applicable to the remuneration corresponding to participating loans granted prior to June 20, 2014 .

3. Pursuant to the provisions of article 21.10 of the LIS, with effect for tax periods beginning on or after January 1, 2021, the amount of dividends or shares in profits of entities to which the exemption provided for in article 21 of the LIS applies, will be reduced for the purposes of applying said exemption, by 5 percent as management expenses relating to said shares.

4. However, in article 21.11 of the LIS it is established that this 5 percent reduction will not be applicable , when said dividends or profit shares:

   1. They are received by an entity whose net amount of turnover in the immediately preceding tax period is less than 40 million euros that meets the following requirements:

      • Not being considered a patrimonial entity in the terms established in article 5.2 of the LIS.

      • Not being part, prior to the incorporation of the entity referred to in letter b) of this section, of a group of companies within the meaning of article 42 of the Commercial Code, regardless of residence and the obligation to prepare consolidated annual accounts.

      • Not having, prior to the incorporation of the entity referred to in letter b) of this section, a percentage of participation, direct or indirect, in the capital or equity of another entity equal to or greater than 5 percent.

      The net amount of the turnover will be determined according to the rules established in article 101.2 of the LIS for small entities.

   2. They come from an entity established after January 1, 2021 in which all of the capital or equity is held directly and since its establishment.

   3. They are received in the tax periods that end in the 3 years immediately following the year of incorporation of the entity that distributes them.

Filling in form 200

• Resident entities

  In application of the provisions of articles 21.1 and 21.2 of the LIS , taxpayers who receive dividends or profit shares from entities resident in Spanish territory must include in box [00370] "Exemption on dividends or profit shares of resident entities (art. 21.1, 21.10 and DT 40 LIS)" on page 12 of form 200, the amounts corresponding to the decreases in the accounting result that arise from the application of the exemption on the receipt of dividends or profit shares from entities resident in Spanish territory, provided that the requirements of article 21.1 of the LIS are met.

  With effect for tax periods beginning on or after 1 January 2021, as established in article 21.10 of the LIS , the amount of dividends or profit shares of entities, to which the exemption in article 21.1 of the LIS applies, will be reduced by 5 percent as management expenses referred to said shares, so taxpayers who apply the exemption in article 21.1 of the LIS must take this reduction into account when completing box [00370] "Exemption on dividends or profit shares of resident entities (art. 21.1, 21.10 and DT 40 LIS)" on page 12 of form 200.

  However, taxpayers who, according to the provisions of article 21.11 of the LIS , do not have to apply the 5 percent reduction for management expenses , must include in box [01764] "Exemption on dividends or shares in profits of resident entities (art. 21.11 LIS)" on page 12 of form 200, the corresponding amounts arising from the application of the exemption in article 21.1 of the LIS, without taking into account said reduction.

• Non-resident entities

  In the event that taxpayers receive dividends or profit shares from entities not resident in Spanish territory, they must include in box [02181] "Exemption on dividends or profit shares from non-resident entities (art. 21.1, 21.10 and DT 40 LIS)" on page 12 of form 200, the amounts corresponding to the decreases in the accounting result that arise from the application of the exemption on the receipt of dividends or profit shares from entities not resident in Spanish territory, provided that the requirements of article 21.1 of the LIS are met.

  With effect for tax periods beginning on or after 1 January 2021, as established in article 21.10 of the LIS , the amount of dividends or profit shares of entities, to which the exemption of article 21.1 of the LIS applies, will be reduced by 5 percent as management expenses referred to said shares, so taxpayers who apply the exemption of article 21.1 of the LIS must take this reduction into account when completing box [02181] "Exemption on dividends or profit shares of resident entities (art. 21.1, 21.10 and DT 40 LIS)" on page 12 of the form 200.

  However, taxpayers who, according to the provisions of article 21.11 of the LIS , do not have to apply the 5 percent reduction for management expenses, must include in box [01765] "Exemption on dividends or shares in profits of resident entities (art. 21.11 LIS)" on page 12 of form 200, the corresponding amounts arising from the application of the exemption in article 21.1 of the LIS, without taking into account said reduction.