1. Transfers made from 01-01-2018
Regulation: Article 23 LIS (edited by Law 6/2018, of July 3)
a. Reduction amount
Positive income from the assignment of the right to use or exploit patents, utility models, supplementary protection certificates for medicines and phytosanitary products, legally protected designs and models, derived from research and development and technological innovation activities, and registered advanced software derived from research and development activities, will be entitled to a reduction in the tax base in the percentage resulting from multiplying by 60 percent the result of the following coefficient:
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In the numerator , the expenses incurred by the transferor entity directly related to the creation of the asset, including those derived from subcontracting with third parties not related to the latter. These expenses will be increased by 30 percent, without, in any case, the numerator being able to exceed the amount of the denominator.
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In the denominator , the expenses incurred by the transferor entity directly related to the creation of the asset, including those derived from subcontracting both with third parties not related to the former and with persons or entities related to the latter and from 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 arising from the transfer of the intangible assets referred to therein, when said transfer is made 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 on industrial and intellectual property that are applicable in Spanish territory shall apply.
b. Positive incomes susceptible to reduction
For the purposes of applying this reduction, the following will be considered positive income susceptible to reduction: income from the transfer of the right to use or exploit the assets and positive income from their transfer, which exceed the sum of the expenses incurred by the entity directly related to the creation of the assets that have not been incorporated into the value of the assets, the amounts deducted by application of article 12.2 of the LIS in relation to the assets, and those expenses directly related to the assets, which have been included in the tax base.
c. Negative income subject 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 it had applied the reduction provided for in this article, the negative income of that tax period will be reduced by the percentage resulting from article 23 of the LIS.
The provisions of the preceding paragraph shall 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 fully integrated into the tax base and, in such case, the positive income obtained in a subsequent tax period will be fully integrated up to said amount, being able to apply to the excess the percentage resulting from the application of article 23 of the LIS.
d. Requirements
The following requirements must be met for the reduction to be applied:
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That the transferee uses the rights of use or exploitation in the development of a economic activity and that the results of such use do not materialize in the delivery of goods or provision of services by the transferee that generate tax-deductible expenses in the transferor entity, provided that, in the latter case, said entity is linked to the transferee.
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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 that it carries out economic activities.
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When the same transfer contract includes accessory provisions of goods or services the consideration corresponding to them must be differentiated in said contract.
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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 subject to transfer.
e. Previous agreements
For the purposes of applying this reduction, prior to carrying out the operations, the taxpayer may request the tax authorities to adopt a prior valuation agreement in relation to the income from the transfer of assets and associated expenses, as well as the income generated in the transfer.
This request will be accompanied by a valuation proposal, which will be based on market value.
The proposal will be considered rejected following the resolution period.
Likewise, prior to carrying out the operations, the taxpayer may request the tax authorities a prior agreement to the assets as belonging to one of the categories referred to in article 23.1 of the LIS, and to value them in relation to the income from the transfer of those assets and the associated expenses, as well as the income generated in the transfer.
This application will accompany an assessment proposal, which will be based on market value.
The proposal will be considered rejected following the resolution period.
The termination of this agreement will require binding report issued by the General Directorate of Taxes, in relation to the qualification of the assets. If deemed appropriate, the General Directorate of Taxes may request a non-binding opinion on the matter from the Ministry of Economy, Industry and Competitiveness (currently, the Ministry of Science and Innovation).
f. Income without right to reduction
Under no circumstances will income from the transfer of the right to use or exploit, or from the transmission, of trademarks, literary, artistic or scientific works, including cinematographic films, personal rights that may be transferred, such as image rights, computer programs other than those referred to in article 23.1 of the LIS , industrial, commercial or scientific equipment, plans, secret formulas or procedures, rights over information relating to industrial, commercial or scientific experiences, or any other right or asset other than those indicated in said article 23.1 of the LIS, give rise to a reduction.
g. 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 form:
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In the event that the taxpayer obtains positive income derived from the transfer or transmission of intangible assets, he/she must make a negative adjustment to the accounting result in box [00372] , recording as an amount the percentage that results from multiplying by 60 percent the result of the coefficient provided for in article 23.1 of the LIS.
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In the event that the taxpayer obtains negative income derived from the transfer or transmission of intangible assets and in previous tax periods has obtained positive income to which he has applied the reduction provided for in article 23 of the LIS (and whose integration into the tax base has been recorded in box [00372]), he must make a positive adjustment to the accounting result in box [01822] , recording 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 he has applied the reduction provided for in article 23 of the LIS.