FAQ (HTML version)
Frequently asked questions about the Financial Transactions Tax in HTML version (12/19/23)
Taxable event
The market capitalization requirement set on a certain date - December 1 of the year prior to the acquisition - is established for the following calendar year regardless of its variations throughout said year.
Therefore, the decrease in stock market capitalization below the threshold of 1,000 million euros, after the reference date, will not have an impact on the application of the tax, except when the capitalization value of less than 1,000 million euros does so. be on December 1 of a year, an assumption that will produce the effect of tax exclusion for the subsequent calendar year.
The acquisition or loss of the other conditions, consisting of shares representing the share capital of companies of Spanish nationality and being admitted to trading under the terms of letter a) of article 2.1 of the Tax Law, will cause The acquisitions of such shares are included or excluded from the taxable event, respectively, from the date on which such circumstances occur.
In particular, the transfer of the registered office outside of Spain of a certain company during the year will determine that the acquisition of shares of said company will no longer be subject to the tax from that moment on.
For its part, the transfer of the registered office to Spain of a certain company during the year will determine that the acquisition of shares of said company will be subject to taxation from that moment on, provided that its market capitalization value on December 1 prior to the change of nationality exceeds 1,000 million euros and that its shares are admitted to trading in the terms provided in letter a) of article 2.1 of the Tax Law.
It is considered that it must be verified whether or not the legally established conditions are met at the time of accrual of the tax.
Finally, it should be noted that during the period between the date of entry into force of the Tax Law - January 16, 2021 - and December 31, 2021, the market capitalization requirement of more than €1,000 million will be will refer to the capitalization value as of December 16, 2020.
The sole transitional provision of the Tax Law establishes that during the period between the date of entry into force of the Tax Law and the following December 31, the requirement contained in letter b) of section 1 of article 2 of The Law will be understood to refer to those Spanish companies whose market capitalization value one month before the date of entry into force of this Law is greater than 1,000 million euros.
From said regulation it follows that the requirement contained in letter b) of section 1 of article 2 of the Tax Law will be understood to refer to those Spanish companies whose market capitalization value exceeds 1,000 million euros on December 16. of 2020.
In accordance with the above, in the case presented, in which the admission to trading takes place during the calendar year 2021, the temporal element provided for in letter b) of article 2.1 of the LITF would not be met for that first year of application of the tax. , since on December 16 of the year prior to the acquisition the company would have no market capitalization.
Consequently, acquisitions of shares of companies that are admitted to trading on a regulated market for the first time in the period between January 16, 2021 and December 31, 2021 will not be subject to tax during the 2021 financial year.
In the case presented, in which the admission to trading takes place during the calendar year, the temporal element provided in letter b) of article 2.1 of the Tax Law would not be met for that year, since the company would lack market capitalization. on December 1 of the year prior to the acquisition.
Consequently, the aforementioned shares will not be subject until the following calendar year, as long as the remaining conditions are met: These are shares representing the share capital of companies of Spanish nationality and are admitted to trading under the terms of letter a) of article 2.1 of the Tax Law, in addition to compliance with the stock market capitalization requirement as of December 1 of the year prior to the acquisition, exceeding 1,000 million euros.
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Convertible or exchangeable bonds or obligations
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Derivative financial instruments on the shares regulated in article 2.1. of the Tax Law
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Warrants
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Preferential subscription rights
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Preferred shares
The regulation of the taxable event in the Tax Law is clear and only the acquisitions for consideration of shares defined in the terms of article 92 of the consolidated text of the Capital Companies Law and the acquisitions for consideration of incorporated negotiable securities are subject to tax. by depositary certificates representing these shares.
Therefore, the acquisitions of financial instruments that, due to their nature, are not capable of being considered shares in accordance with said consolidated text or deposit certificates representing said shares are not understood to be included in the scope of application of the tax. Only when the execution or liquidation of said financial instruments gives rise to a delivery of shares or negotiable securities made up of deposit certificates representing those shares would the tax be subject to tax.
To the extent that the aforementioned operations do not constitute acquisitions for consideration of shares, by virtue of the provisions of article 2 of the Tax Law, acquisitions derived from the splitting of shares or the grouping of shares will not be subject to the tax. .
Section 1 of article 2 of the Tax Law establishes the subjection to tax of acquisitions for valuable consideration of shares representing the share capital of companies of Spanish nationality when the company has its shares admitted to trading in a Spanish market, or another State of the European Union, which is considered regulated in accordance with the provisions of Directive 2014/65/EU of the European Parliament and of the Council, of May 15, 2014, relating to markets in financial instruments, or in a market considered equivalent from a third country according to the provisions of article 25.4 of said Directive. The market capitalization requirement must also be met as of December 1 of the year prior to the acquisition, exceeding 1,000 million euros.
In accordance with the above, acquisitions of shares that are only traded in a multilateral trading system will not be subject to the tax as this is not considered a regulated market in accordance with the provisions of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments, nor is it a market considered equivalent in a third country in accordance with the provisions of Article 25.4 of said Directive.
Acquisitions for consideration of shares defined in the terms of article 92 of the consolidated text of the Capital Companies Law, representing the share capital of companies of Spanish nationality, will be subject to the Tax when the conditions established in the first section of the Article 2 of the Tax Law.
In fully paid-up capital increases, only new shares are issued as a result of the transformation of reserves or profits into share capital, and therefore the delivery of the new shares does not entail a quantitative change in the equity of the issuing company.
Consequently, as they are not acquisitions for consideration, the acquisitions of shares resulting from a fully paid-up capital increase are not subject to the tax.
In the shareholder remuneration programs known as “scrip dividend”, the shares delivered by the company are new shares resulting from a fully paid-up capital increase, so, as in the previous case, the acquisition of such shares does not is subject to tax.