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Practical Manual of Companies 2022.

New assumption of Hybrid Asymmetry

For tax periods that begin on or after January 1, 2022, the second Final Provision of Royal Decree-Law 18/2022, of October 18, in order to transpose article 9 bis of the Directive ( EU ) 2016/1164, incorporates a new assumption of hybrid asymmetry in section 12 of article 15 bis of the LIS , passing the current sections 12 and 13 to be numbered as sections 13 and 14, respectively.

With this new assumption, the content of article 9 bis of Directive (EU) 2016/1164 is transposed, which regulates the case of inverted hybrid asymmetries, forcing Member States to treat fiscally taxable entities as residents. transparent that are considered by the legislation of the countries of residence of their majority shareholders as entities subject to personal income taxation to avoid a situation of hybrid asymmetry in which certain income is not taxed in any country or territory, That is, they do not pay taxes either at the headquarters of the entities under the income attribution regime or at the headquarters of their participants or the entity paying said income.

Thus, with the objective that certain entities under the income attribution regime located in Spanish territory do not give rise to a hybrid asymmetry, they become taxpayers of Corporate Tax for certain positive income that corresponds to be attributed to all participants residing in countries or territories that consider the entity in attribution of income as a taxpayer for personal income tax, when the following conditions are met:

  • That it is an entity under a regime of attribution of income in which one or several entities, linked to each other, participate directly or indirectly on any day of the year, in the capital, in the own funds, in the results or in the rights of vote in a percentage equal to or greater than 50 percent; and

  • That they are residents in countries or territories that qualify the entity under the attribution regime as a taxpayer for a personal income tax.

The positive income mentioned in the previous paragraph are the following:

  • Those obtained in Spanish territory that are subject to and exempt from taxation in IRNR .

  • Those obtained abroad that are not subject to or exempt from taxation by a tax required by the country or territory of the entity or entities paying such income.

In these cases, the tax period will coincide with the calendar year in which such income is obtained. The rest of the income obtained by the entity in the attribution of income will be attributed to the partners, heirs, community members or participants in accordance with the application of the income attribution regime regulated in Section 2 of Title X of Law 35/2006. , of November 28, on the Personal Income Tax.

The entity under the income attribution regime to which this new assumption applies is required to comply with the accounting and registration obligations that correspond to the method of determining its income, including those that are taxed according to Corporate Tax.

In relation to the above, the second Final Provision of Royal Decree-Law 18/2022 also modifies section 2 of article 6 of the LIS , establishing that entities under the income allocation regime They will not be taxed by Corporate Tax, except as provided in section 12 of article 15 bis of the LIS.