Entities under income allocation regime: hybrid asymmetries

For tax periods that begin on or after January 1, 2022, the second Final Provision of Royal Decree-Law 18/2022, of October 18, incorporates a new case of hybrid asymmetry in section 12 of article 15 bis of the LIS , which transposes the content of article 9 bis of Directive ( EU ) 2016/1164, which regulates the case of inverted hybrid asymmetries obliging Member States to treat fiscally as residents fiscally transparent entities that are considered by the legislation of the countries of residence of its majority shareholders as entities subject to personal income tax to avoid a situation of hybrid asymmetry in which certain income is not taxed in any country or territory, that is, they are not taxed either at the headquarters of the entities under the income attribution regime or at the headquarters of its participants or of the entity paying said income.

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

• That it is an entity under an income attribution regime in which one or more entities, linked to each other participate directly or indirectly on any day of the year, in the capital, in the equity, in the results or in the voting rights 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 incomes mentioned in the previous paragraph are the following:

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

• Those obtained abroad that are not subject to or are 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 remaining income obtained by the entity in income attribution will be attributed to the partners, heirs, commoners 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 Personal Income Tax.

The entity under an income attribution regime that gives rise to this new case of hybrid asymmetry is obliged to comply with the accounting and registration obligations that correspond to the method of determining its income, including those taxed according to Corporate Income Tax.

Filling in form 200

In application of the provisions of section 12 of article 15 bis of the LIS, entities under the income attribution regime located in Spanish territory must make the following adjustments in boxes [00333] and [00334] "Hybrid asymmetries (art. bis.12 LIS)" on page 12 of form 200:

• They must make a negative adjustment in box [00334] for the positive income that must be attributed to their participants, excluding the following positive income that must be attributed to participants resident in countries or territories that consider these entities under the income attribution regime located in Spanish territory as taxpayers for personal income tax:

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

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

• They must make a positive adjustment in box [00333] for the losses that must be attributed to their participants.