Frequently Asked Questions (HTML version)

An objective criterion must be applied, consisting of the exchange rate 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 therefore not appropriate to apply an exchange rate agreed upon in the transaction by the contracting parties.

First of all, it should be noted that it is not possible to identify the purchaser with a securities account. The determination of net purchases, referring to the same value subject to tax, must be carried out for 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 purchaser. The netting of securities acquired and transferred by a sole holder (individual account) cannot be carried out with securities acquired and transferred jointly with other co-holders.

In this regard, if the purchaser is an individual, the application of the rule for determining the tax base provided for in section 3 of article 5 of the Tax Law will apply 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 taxpayer.

On the other hand, 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 persons who are the owners of said accounts, provided that the percentage of ownership is the same in all the securities accounts, therefore, the netting only applies to that group of persons.

The assumption raised is included within the one regulated in the second paragraph of section 1 of article 5 of the Tax Law, which provides that “in the event that the amount of the consideration is not expressed, the taxable base will be the value corresponding to the closing of the most relevant regulated market by liquidity of the security in question on the last trading day prior to that of the transaction ”.

The assumption would include consideration that is made in kind.

For example, if 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 received by the counterparty in exchange for their delivery are also subject to tax, the counterparty will also have to pay tax on the market value of the latter shares on the previous day.

The tax base in the case of remuneration to employees through the delivery of treasury shares will be determined in accordance with the provisions of article 5 of the Tax Law.

According to section 1 of this article, “the taxable base shall consist of the amount of the consideration for the transactions subject to the tax, not including transaction costs arising from market infrastructure prices, commissions for intermediation, or any other expense associated with the transaction”.

The second paragraph of section 1 provides that “in the event that the amount of the consideration is not stated, the taxable base will be the value corresponding to the closing of the most relevant regulated market by liquidity of the security in question on the last trading day prior to the transaction.”

The first assumption raised, in which the delivery of shares remunerates the services provided by employees without them paying monetary compensation, is regulated in the second paragraph, which includes the case in which the compensation is made in kind.

This rule will also apply when part of the consideration is monetary and part in kind.

In conclusion, in both cases the taxable base will be the value corresponding to the closing of the most relevant regulated market by liquidity of the shares to be delivered on the last trading day prior to the transaction.

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, a purchaser first transfers X shares of company A that he previously owned and on the same day acquires Y shares of the same company, the net purchase at the end of the day will be the difference resulting from subtracting from the number of securities acquired (Y) those transferred (X) on the same day. If this 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. For the purposes of this calculation, exempt acquisitions provided for in Article 3 of this Law will be excluded, as well as transfers made within the framework of application of said exemptions. All of 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 taxpayer and must also have the same settlement date.

For the purposes of the aforementioned article 5.3 of the Tax Law, a negotiable security consisting of a deposit certificate representing the shares referred to in section 1 of article 2 of the Law cannot be considered to be the same value as the shares it represents.

Among other distinguishing features, it should be noted that such depositary certificates may be issued by an entity other than the one that issues the shares they represent, regardless of the place of establishment of that entity, and they are traded independently of the underlying share, having different ISIN codes assigned to them. Also, 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 taxpayer, with respect to the same acquirer and which, in addition, are settled on the same date.

Deliveries of taxable securities resulting from the execution at maturity of derivative financial instruments give rise to acquisitions that may be netted with the rest of the transactions of the same taxable security carried out on the same day, provided that the rest of the application requirements are met.

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 taxpayer, with respect to the same acquirer and which, in addition, are settled on the same date.

Pursuant to the provisions of this provision, it is required that the acquisitions and transfers have been carried out on the same day, that is, the operations must have been executed on the same date. In addition, they must have the same settlement date.

Likewise, the special rule for calculating the tax base in intraday transactions applies to onerous acquisitions regardless of whether they have been made 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 the application of the special rule, it is not a necessary requirement that the operations be executed by the same market member. Yes, 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 sale 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 taxable base of transactions subject to tax, although nothing prevents the amount of the consideration for transactions subject to tax, or the corresponding values or prices referred to in sections 1 and 2 of article 5 of the Tax Law from being expressed in euros with more than two decimal places, it will be necessary for each acquisition transaction to round up or down to the second decimal corresponding to the nearest euro cent, for the proper determination of the taxable base. If the amount prior to rounding is expressed with three decimal places and the third decimal is exactly half a cent, rounding will be carried out up 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 shall also be rounded up or down to the second decimal place corresponding to the nearest euro cent.

The described rounding operation will be applied, if necessary, for the calculation of 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 taxpayer, with respect to the same acquirer and which, in addition, are settled on the same date.

Pursuant to Article 9 of the RDITF, for the purposes of tax settlement, the settlement date of the transactions 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 corrections that may be necessary in the event that, as a result of non-compliance with the settlement of the securities, the transactions are not settled.

In accordance with the above, when the taxpayer has opted for the theoretical settlement date for the purposes of settling the tax in accordance with the terms set forth in article 9 of the RDITF, in order to determine the net purchase position at the end of the day, he/she must consider that the acquisition and transfer operations have been settled on the theoretical settlement date.