FAQ (HTML version)
Frequently asked questions about the Financial Transactions Tax in HTML version (12/19/23)
Taxable base
An objective criterion must be applied consisting of the exchange of currency to euros published by the European Central Bank corresponding to the last business day prior to the date on which the tax accrual occurs with respect to the securities acquired. It is not appropriate, therefore, to apply an exchange rate agreed upon in the operation by the contracting parties.
First of all, it should be indicated that it is not possible to identify the acquirer with a securities account. The determination of net purchases, referring to the same value subject to tax, must be carried out with respect to each purchaser.
The application of the rule for determining the tax base provided for in section 3 of article 5 of the Tax Law must be carried out differently for each acquirer. The netting of securities acquired and transferred by a single holder (individual account) cannot be carried out with the securities acquired and transferred jointly with other joint holders.
In this sense, if the acquirer is an individual person, the application of the rule for determining the tax base provided for in section 3 of article 5 of the Tax Law will proceed in relation to all securities accounts that are exclusively in the name of that person and provided that the acquisitions and transfers of the same value subject to tax are ordered or executed by the same taxable person.
For its part, if the securities accounts in which the acquisitions and transfers are recorded belong to several co-owners, the “same acquirer” of the securities is understood to be the group of people who are owners of said accounts, provided that the percentage of ownership is the same in all securities accounts, therefore, netting proceeds only for that group of people.
The assumption raised is included within that regulated in the second paragraph of section 1 of article 5 of the Tax Law, which provides that “in the case in which the amount of the consideration is not expressed, the tax base will be the value corresponding to the closing of the most relevant regulated market due to liquidity of the security in question on the last trading day prior to operation ”.
The assumption would include a consideration that is made in kind.
As an example, in the event that the consideration for the transaction is the delivery of other shares, the acquisition value of the shares subject to tax will be the market value of those shares on the previous day. If the shares that the counterparty receives in consideration for their delivery are also subject to tax, the counterparty will also have to pay tax on the previous day's market value of these last shares.
The tax base in the case of remuneration to employees through the delivery of own shares will be determined in accordance with the provisions of article 5 of the Tax Law.
In accordance with section 1 of this article, “the tax base will be constituted by the amount of the consideration for the operations subject to the tax, without including the transaction costs derived from the prices of the market infrastructures, nor the commissions for the intermediation, nor any other expense associated with the operation.”
The second paragraph of section 1 provides that “in the case in which the amount of the consideration is not expressed, the tax base will be the value corresponding to the closing of the most relevant regulated market due to liquidity of the security in question on the last day of previous trading. "that of the operation."
The first assumption raised, in which the delivery of shares remunerates the services provided by the employees without them paying monetary compensation, is regulated in the second paragraph, which includes the case where the compensation is made in kind.
This rule will also apply when part of the consideration is monetary and another part in kind.
In conclusion, in both cases the tax base will be the value corresponding to the closing of the most relevant regulated market due to liquidity of the shares to be delivered on the last trading day prior to the operation.
In accordance with the provisions of article 5.3 of the Tax Law, the order in which the purchase and sale operations are carried out is irrelevant. If, for example, an acquirer first transfers securities acquired (Y) those transmitted (X) on the same day. If said difference is positive, the tax base will be the result of multiplying it by the quotient resulting from dividing the sum of the consideration for the acquisitions by the number of securities acquired. To carry out this calculation, the exempt acquisitions provided for in article 3 of this Law will be excluded, as well as the transfers made within the framework of application of said exemptions. All this taking into account that the acquisition and transfer operations of the same value subject to tax must be ordered or executed by the same taxable person and must also have the same settlement date.
For the purposes of the aforementioned article 5.3 of the Tax Law, it cannot be considered that a negotiable security constituted by a deposit certificate representing the shares referred to in section 1 of article 2 of the Law is the same value as the shares that represent.
Among other differentiating features, it should be noted that such depositary certificates may be issued by an entity different from the one that issues the shares they represent, regardless of the place of establishment of that entity, and are traded independently of the underlying share, having assigned different ISIN codes. Likewise, each certificate may represent only a fraction of a share or a number of shares of the company in question.
Section 3 of article 5 of the Tax Law establishes a rule for calculating the tax base in the event that on the same day acquisitions and transfers of the same value subject to tax are made, ordered or executed by the same taxable person. , with respect to the same acquirer and that, in addition, are settled on the same date.
Deliveries of securities subject to tax that derive from the execution at maturity of derivative financial instruments give rise to acquisitions that can be netted with the rest of operations of the same security subject to tax carried out on the same day, provided that the rest of the application requirements.
Section 3 of article 5 of the Tax Law establishes a rule for calculating the tax base in the event that on the same day acquisitions and transfers of the same value subject to tax are made, ordered or executed by the same taxable person. , with respect to the same acquirer and that, in addition, are settled on the same date.
In accordance with the provisions of said provision, it is required that acquisitions and transfers have been carried out on the same day, that is, the operations must have been executed on the same date. Additionally, they must have the same settlement date.
Likewise, the special rule for calculating the tax base in intraday operations applies to onerous acquisitions regardless of whether these have been carried out in different trading venues or whether the transaction has taken place outside a regulated market, provided that the rest of the application requirements are met.
For its part, for the application of the special rule it is not a necessary requirement that the operations be executed by the same market member. It is essential that they have been ordered or executed by the same taxpayer.
Finally, it is not necessary for the onerous legal transaction to be a purchase and sale transaction for the application of the rule for calculating the tax base.
The Tax Law does not establish a specific rounding method. For the purposes of determining the tax base of the operations subject to the tax, although nothing prevents the amount of the consideration of the operations subject to the tax, or the corresponding values or prices referred to in sections 1 and 2 of article 5 of the Law of the Tax are expressed in euros with more than two decimal places, it will be necessary to round off for each acquisition transaction by excess or by default to the second decimal that corresponds to the nearest euro cent, for the proper determination of the tax base. In the event that the amount prior to rounding is expressed with three decimal places and the third decimal is exactly half a cent, the rounding will be carried out in excess to the nearest higher cent.
As an example, an amount of 60.2523 euros should be rounded down to 60.25 euros, while 60.2571 euros should be rounded up to 60.26 euros. In turn, an amount of 60.2550 euros must be rounded up to 60.26 euros.
Likewise, for the purposes of applying the netting rule provided for in section 3 of article 5 of the Tax Law, the quotient resulting from dividing the sum of the consideration for the acquisitions referred to in said section by the number of securities acquired It will also be rounded up or down to the second decimal point that corresponds to the nearest euro cent.
The described rounding operation will be applicable, if necessary, to calculate the tax rate.
Section 3 of article 5 of the Tax Law establishes a rule for calculating the tax base in the event that on the same day acquisitions and transfers of the same value subject to tax are made, ordered or executed by the same taxable person. , with respect to the same acquirer and that, in addition, are settled on the same date.
In accordance with article 9 of the RDITF, for the purposes of tax settlement, the settlement date of the operations is considered to be the effective settlement date. However, taxpayers may choose to consider the theoretical settlement date as the settlement date, without prejudice to any rectifications that may apply in the event that, as a result of non-compliance in the settlement of the securities, the transactions are not settled.
In accordance with the above, when the taxable person has opted for the theoretical settlement date for the purposes of tax settlement in the terms provided for in article 9 of the RDITF, to determine the net purchase position at the end of the day, he must consider that the acquisition and transfer operations have been settled on the theoretical settlement date.