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Practical Manual for Companies 2023.

Acquisition of holdings in non-resident entities

The fourteenth transitional provision of the LIS establishes that the deduction established for the acquisition of shares of non-resident entities, in section 5 of article 12 of the RDLeg. 4/2004, of March 5, as amended for tax periods beginning before January 1, 2015, will continue to apply, under the conditions and considerations indicated below.

This deduction from the tax base for the acquisition of shares in non-resident entities is also subject to the following conditions and considerations:

  • shall not apply to acquisitions of securities representing participation in the equity of entities not resident in Spanish territory, made after 22 December 2007, without prejudice to the provisions of section 3 of article 1 of the European Commission Decision of 28 October 2009 and of section 3 of article 1 of the Commission Decision of 12 January 2011 on the tax amortisation of financial goodwill for the acquisition of foreign participations, Case C-45/2007, with respect to acquisitions related to an irrevocable obligation agreed before 22 December 2007. However, in the case of acquisitions of securities conferring the majority of the participation in the equity of entities resident in another that is not a Member of the European Union, carried out between 22 December 2007 and 21 May 2011 the deduction may be applied when the existence of explicit legal obstacles to cross-border business combinations is demonstrated, under the terms established in sections 4 and 5 of article 1 of the aforementioned Commission Decision of 12 January 2011, in accordance with the provisions of the third paragraph of article 12.5 of the RDLeg. 4/2004, as amended by the Sixth Final Provision of Law 31/2011, of October 4, although containing the corresponding affectation by the correction of errors (published in DOUE of November 26, 2011) of the aforementioned Decision of the European Commission of January 12, 2011, according to which, for acquisitions made on December 21, 2007, the aforementioned article 12.5 of the RDLeg may be applied. 4/2004.

  • And since there have been other drafts of article 12.5 of the RDLeg. 4/2004 prior to that given by Law 31/2011, for tax periods starting from January 1, 2015 , the following must be taken into account:

    • In relation to the acquisition of shares in non-resident entities in Spanish territory carried out from January 1, 2011 , the deduction will only be applicable in the admissible cases according to the wording of the third paragraph of article 12.5 of the RDLeg. 4/2004 given by Law 31/2011.

    • In relation to the acquisition of shares in non-resident entities in Spanish territory carried out after December 22, 2007 , the corresponding amount relating to the pending deduction generated in tax periods beginning before January 1, 2011 will only be applicable to the cases permitted in the wording of the third paragraph of article 12.5 of the RDLeg. 4/2004 given by Law 31/2011, with the aforementioned affectation.

    • In relation to the participations of non-resident entities in Spanish territory acquired between January 1, 2002 and December 21, 2007 , the corresponding outstanding amounts may be deducted.

Filling in form 200

Taxpayers who, in tax periods beginning on or after 1 January 2002, have acquired securities representing participation in the equity of entities not resident in Spanish territory whose income may be eligible for the exemption established in article 21 of the Royal Decree-Law. 4/2004 or the exemption provided for in article 20 bis of Law 43/1995, they must make the following adjustments in boxes [00329] and [00330] "Acquisition of shares in non-resident entities ( DT 14 LIS)" on page 13 of form 200:

  • In the box [00330] of decreases, they will include the amount that does not correspond to imputing to the assets and rights of the entity not resident in Spanish territory, of the (positive) difference between the acquisition price of the participation and the net worth of the participating company at the date of acquisition, in proportion to that participation.

  • And when they transmit the aforementioned securities, they must record in the box [00329] of increases the amount that, due to the acquisition of the same, they included in box [00330] as a decrease.