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Practical Manual of Companies 2022.

From 01/01/2018

Regulation: Article 23 LIS , according to the wording of Law 6/2018, of July 3.

Reduction amount

The positive income from the assignment of the right to use or exploit patents, utility models, complementary certificates for the protection of medicines and products phytosanitary products, legally protected designs and models that derive from research and development and technological innovation activities, and registered advanced software that derives from research and development activities, will be entitled to a reduction in the tax base in the percentage resulting from multiplying by a 60 percent the result of the following coefficient:

  1. In the numerator , the expenses incurred by the transferring entity directly related to the creation of the asset, including those derived from subcontracting with third parties not linked to it. These expenses will increase by 30 percent, without, in any case, the numerator being able to exceed the amount of the denominator.

  2. In the denominator , the expenses incurred by the transferring entity directly related to the creation of the asset, including those derived from subcontracting both with third parties not related to it and with persons or entities linked to it and the acquisition of the asset.

In no case shall the aforementioned coefficient include financial expenses, repayments on properties or other expenses not directly related to the creation of the asset.

The reduction provided for in this section will also apply to the positive income from the transmission of the intangible assets referred to therein, when said transmission is carried out between entities that do not have the status of related parties.

For the purposes of determining the legal protection regime for intangible assets referred to in the first paragraph of this section, the provisions of Spanish, European Union and international regulations will apply. regarding industrial and intellectual property that is applicable in Spanish territory.

Positive income susceptible to reduction

For the purposes of applying this reduction, the income from the transfer of the right to use or exploit the assets and the positive income from their transmission, which exceed the sum of the expenses incurred, will be considered as positive income susceptible to reduction. by the entity directly related to the creation of the assets that had not been incorporated into the value of the assets, of the amounts deducted by application of article 12.2 of the LIS in relation to the assets, and of those expenses directly related to the assets, that had been integrated into the tax base.

Negative income susceptible to reduction

In the event that in a tax period negative income is obtained and in previous tax periods the entity had obtained positive income to which the reduction would have been applied provided for in this article, the negative income for that tax period will be reduced by the percentage resulting from article 23 of the LIS.

The provisions of the previous paragraph will apply as long as the negative income does not exceed the amount of positive income integrated in previous tax periods by applying the reduction provided for in this article. The excess will be integrated in its entirety into the tax base and, in such case, the positive income obtained in a subsequent tax period will be integrated in its entirety up to said amount, and the percentage resulting from the application of article 23 of the LIS.

Requirements

To apply the reduction, the following requirements must be met:

  1. That the assignee uses the rights of use or exploitation in the development of an economic activity and that the results of that use do not materialize in the delivery of goods or provision of services by the assignee that generate tax deductible expenses in the transferor entity, provided that, in the latter case, said entity is linked to the transferee.

  2. That the transferee does not reside in a country or territory classified as non-cooperative jurisdiction, unless it is located in a Member State of the European Union and the taxpayer proves that the operation responds to valid economic reasons and carry out economic activities.

  3. When the same transfer contract includes accessory benefits of goods or services the consideration corresponding to them must be differentiated in said contract.

  4. That the entity has the accounting records necessary to be able to determine each of the direct income and expenses referred to in article 23 of the LIS, corresponding to the assets being transferred .

Filling in form 200

According to the provisions of article 23 of the LIS, taxpayers must make the following adjustments in boxes [01822] and [00372] "Reduction of income from certain intangible assets (art. 23 LIS)" on page 13 of the model :

  • In the event that the taxpayer obtains positive income derived from the assignment or transmission of intangible assets, they must make a negative adjustment to the accounting result in box [00372] , recording as the amount the percentage resulting from multiplying by 60 percent the result of the coefficient provided for in article 23.1 of the LIS.

  • In the event that the taxpayer obtains negative income derived from the assignment or transmission of intangible assets and in previous tax periods has obtained positive income to which the reduction provided for in the article would have been applied 23 of the LIS (and whose integration into the tax base has been included in box [00372]), you must make a positive adjustment to the accounting result in box [01822] , entering the amount of that negative income reduced by the percentage resulting from article 23.1 of the LIS and with the limit of the positive income integrated in previous tax periods to which the reduction provided for in article 23 of the LIS would have been applied.