Frequently Asked Questions (HTML version)

The market capitalization requirement set on a certain date - December 1 of the year prior to the acquisition - is established with effect for the following calendar year regardless of its variations throughout said year.

Therefore, a decrease in stock market capitalisation below the threshold of 1,000 million euros after the reference date will have no impact on the application of the tax, except when the market capitalisation value is less than 1,000 million euros on 1 December of a year, in which case it will produce the effect of exclusion from taxation for the following calendar year.

The acquisition or loss of the other conditions, consisting of the fact that they are shares representing the share capital of companies of Spanish nationality and that they are admitted to trading in accordance with the terms of letter a) of article 2.1 of the Tax Law, will cause the acquisition of such shares to be included or excluded from the taxable event of the tax, respectively, from the date on which such circumstances occur.

In particular, the transfer of the registered office of a particular company outside Spain during the year will mean that the acquisition of shares in said company will no longer be subject to 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 in 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 under the terms provided for 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 requirement for a market capitalization of more than 1 billion euros 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 set out in letter b) of section 1 of article 2 of the Law shall be understood to refer to those Spanish companies whose stock market capitalization value one month before the date of entry into force of this Law is greater than 1,000 million euros.

According to this regulation, the requirement set out in letter b) of section 1 of article 2 of the Tax Law shall be understood to refer to those Spanish companies whose market capitalisation value is greater than 1,000 million euros on 16 December 2020.

In accordance with the above, in the case raised, in which the admission to trading takes place during the calendar year 2021, the time 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 in 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 raised, in which the admission to trading takes place during the calendar year, the time element provided for 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 actions will not be subject to tax until the following calendar year, provided that the remaining conditions are met: be shares representing the share capital of companies of Spanish nationality and be admitted to trading under the terms of letter a) of article 2.1 of the Tax Law, in addition to meeting the requirement of stock market capitalisation as of 1 December of the year prior to the acquisition, greater than 1,000 million euros.

1. Convertible or exchangeable bonds or obligations

2. Derivative financial instruments on shares regulated in article 2.1. of the Tax Law

3. Warrants

4. Preemptive rights

5. Preferred shares

The regulation of the taxable event in the Tax Law is clear and only the onerous acquisitions of shares defined in the terms of article 92 of the consolidated text of the Capital Companies Law and the onerous acquisitions of negotiable securities consisting of deposit certificates representing these shares are subject to tax.

Therefore, the acquisition of financial instruments that by their nature are not susceptible to being considered shares in accordance with the consolidated text or certificates of deposit representing such shares are not considered 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 consisting of deposit certificates representing said shares would the tax be subject to the tax.

To the extent that the aforementioned transactions do not constitute acquisitions of shares for consideration, pursuant to the provisions of Article 2 of the Tax Law, acquisitions resulting from the split of shares or the pooling of shares will not be subject to 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 capitalisation requirement as of 1 December of the year prior to the acquisition, greater than 1 billion euros, must also be met.

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.

The tax will be subject to acquisitions for a consideration of shares defined in the terms of article 92 of the consolidated text of the Capital Companies Act, representing the share capital of companies of Spanish nationality, when the conditions established in the first section of article 2 of the Tax Act are met.

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, since these are not acquisitions for a consideration, the acquisition of shares resulting from a fully paid-up capital increase are not subject to 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 is not subject to tax.