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Practical Manual of Companies 2022.

Modifications in relation to SICAVs

With effect for tax periods beginning on or after January 1, 2022, Law 11/2021, of July 9, on measures to prevent and combat tax fraud, introduces in the LIS the following modifications in relation to the SICAV :

  1. Letter a) of article 29.4 of the LIS is modified to establish the additional requirements that partners must meet so that SICAVs can apply the 1 percent tax rate:

    1. Minimum number of shareholders

      Only those shareholders who own shares for an amount equal to or greater than 2,500 euros determined in accordance with the net asset value corresponding to the date of acquisition of the shares will be counted.

      In the case of investment companies with variable capital by compartments, only those shareholders who own shares for an amount equal to or greater than 12,500 euros will be counted, determined according to the net asset value corresponding to the date of acquisition of the shares.

    2. Permanence of shareholders

      The minimum number of shareholders determined as provided in letter a) above, must attend during the number of days that represents at least three quarters of the tax period.

    The rules established in letters a) and b) above will not apply to free investment companies or to companies whose shareholders are exclusively other free investment collective investment institutions, nor to listed variable capital index investment companies.

    Compliance with these rules may be verified by the Tax Administration , so the investment company must maintain and preserve during the limitation period the data corresponding to the partners' investment in the company. society.

  2. In relation to the modification mentioned in the previous point, the forty-first transitional provision of the LIS is added to establish a transitional regime for SICAVs that agree to their dissolution and liquidation, the purpose of which is allow its partners to transfer their investment to other collective investment institutions that meet the requirements to maintain the 1 percent corporate tax rate.

    For these purposes, the forty-first transitional provision of the LIS establishes that may agree to its dissolution and liquidation , with application of the tax regime provided for in this provision transitional, variable capital investment companies that:

    1. In the last tax period that began before January 1, 2022, they were paying Corporate Tax at the reduced tax rate of 1 percent , in the terms provided for in article 29.4 a) of the LIS in its wording in force as of December 31, 2021.

    2. During the year 2022, validly adopt the dissolution agreement with liquidation . Therefore, the deadline to adopt this agreement begins on January 1, 2022 and ends on December 31, 2022.

    3. After the agreement, carry out all the necessary legal acts or transactions according to commercial regulations up to six months after the deadline they have to adopt said agreement (December 31, 2022). the registration cancellation of the company in liquidation. Therefore, the period to carry out all the legal acts and businesses necessary to liquidate the company until its registration cancellation ends on June 30, 2023, although nothing prevents said operations from being concluded within the year 2022.

    The dissolution with liquidation of SICAVs carried out according to the forty-first transitional provision of the LIS will have the following tax regime:

    1. During the tax periods beginning on January 1, 2022 that conclude until the registration cancellation, the SICAV in liquidation will continue to pay taxes at the reduced tax rate of 1 percent, provided that the number of shareholders is equal to or greater than 100, regardless of the acquisition price of their shares in the SICAV.

    2. The partners of the SICAV in liquidation will not include in their tax base the income derived from the liquidation of the company, provided that reinvest all of the money or assets (partial reinvestment is not possible) that corresponds to them as a liquidation fee in the acquisition or subscription of shares or participations in one or more collective investment institutions provided for in the letters a) or b) of article 29.4 of the LIS. The new shares or participations acquired or subscribed will retain the value and date of acquisition of the shares of the company under liquidation.

      The reinvestment must be carried out before seven months have elapsed from the end of the period established to validly adopt the dissolution agreement with liquidation of the SICAV (December 31, 2022), so the period to carry out the reinvestment ends on July 31, 2023, although nothing prevents said reinvestment from being carried out within the year 2022.

      The partner must inform the company in liquidation of his decision to accept the reinvestment, in which case the entity in liquidation will refrain from making any payment of money or delivery of goods to the partner who corresponds as a settlement fee. In addition, the partner must provide the company with documentation proving the date and value of acquisition of the shares, in the event that the company does not have such information.

      In addition, the member will communicate to the collective investment institution in which the reinvestment will be carried out his own identification data, those corresponding to the company in liquidation and its managing entity and depository entity, as well as such as the amount of money or assets that make up the liquidation fee to be reinvested in the destination institution. For these purposes, the partner will complete the corresponding subscription or acquisition order , authorizing said institution to process said order with the company in liquidation.

      Once the order is received by the company in liquidation, the reinvestment must be carried out by means of the transfer ordered by the latter to its depositary, on behalf and by order of the partner, of the money or assets that are the subject of the reinvestment, from the accounts of the company in liquidation to the accounts of the collective investment institution in which the reinvestment is made. Said transfer will be accompanied by information regarding the values and dates of acquisition of the shares of the company in liquidation to which the reinvestment corresponds.

    3. When the partner takes advantage of the reinvestment regime provided for in letter c) of section 2 of the forty-first transitional provision of the LIS, there will be no obligation to make payments on account of the corresponding personal tax of the partner on the income derived from the liquidations of the SICAV.

    This tax regime will not be applicable to cases of dissolution with liquidation of free investment companies, nor of listed variable capital index investment companies.