FAQ (HTML version)
Frequently asked questions about the Financial Transactions Tax in HTML version (12/19/23)
Taxpayer
The entities that may have the status of taxable person in the aforementioned case are credit institutions and investment services companies that, being authorized to negotiate on their own account (letter c) of article 140.1 of the consolidated text of the Market Law of Securities, approved by Royal Legislative Decree 4/2015, of October 23), carry out acquisitions subject to tax on their own account, regardless of which financial intermediary executes the operation.
In the case of Spanish entities, credit institutions and securities companies may have the status of taxable person. Therefore, securities agencies, portfolio management companies and financial advisory companies are excluded, even in the event that they make purchases of securities subject to tax in their own name in the exercise of managing their assets, from in accordance with the provisions of the last paragraph of article 143.5 of the consolidated text of the Securities Market Law.
The financial intermediaries that may have the status of taxable person are Spanish or foreign credit institutions and investment services companies with authorization to execute orders on behalf of clients (letter b) of article 140.1 of the consolidated text of the Law of the Stock Market, approved by Royal Legislative Decree 4/2015, of October 23). In the case of Spanish entities, in accordance with this criterion, credit institutions, securities companies and securities agencies may have the status of taxable person.
No. Although they may be authorized to receive and transmit client orders in relation to one or more financial instruments (article 40.2.c) of Law 35/2003, of November 4, on Collective Investment Institutions), they are not are authorized to execute orders on behalf of clients referred to in letter b) of article 140.1 of the consolidated text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of October 23.
On the other hand, although they may also be authorized for the custody and administration of investment fund shares (article 40.2.b) of Law 35/2003, of November 4, on Collective Investment Institutions), they are not for the deposit or custody of securities, cash and, in general, of the assets subject to the investments of the IIC, which corresponds to the depositary (article 57 of Law 35/2003, of November 4, on Collective Investment Institutions ).
In the event that the acquisition of securities subject to tax is carried out by a financial intermediary that operates with an omnibus account and the acquisition is recorded in the aforementioned account, the determination of the taxpayer and the taxable person will follow the rules provided for in the article. 6 of the Tax Law.
If the intermediary, who may or may not be the owner of the omnibus account where the values are recorded, makes the acquisitions on behalf of third parties, the entry of the acquisition in the omnibus account will not alter the rules for determining the taxpayer and the taxable person. , said omnibus account must be considered one more step in the chain of intermediation in the holding of securities and it must be understood, in light of the characteristics of omnibus accounts, that the record of ownership in the name of the acquirer is found in the books of the intermediary, without prejudice to the fact that the tax accrues at the time the registration entry is made in said omnibus account, since that will be the moment in which said registration entry must be considered made in favor of the acquiring client.
If the counterparty is a credit institution or investment services company that may be a taxable person in the terms indicated in these frequently asked questions and makes the acquisition on its own account, the taxable person will be said credit institution or investment services company.
If the counterparty is a credit institution or investment services company that carries out the acquisition on behalf of others, the taxable person will be the financial intermediary that may be a taxable person in the terms indicated in these frequently asked questions that receives the order directly from the acquirer.
If the counterparty is not a credit institution or investment services company that may be a taxable person in the terms indicated in these frequently asked questions, the taxable person will be the systematic internalizer itself.
The determination of the taxable person will be carried out following the rules provided in article 6.2 of the Tax Law. In the event that the acquisition of securities subject to tax is carried out without there being a credit institution or investment services company capable of being a taxable subject in the terms indicated in these frequently asked questions that is acquired on its own account, regardless of a trading center and the activity of a systematic internalizer, in accordance with article 6.2.b) 3 of the Tax Law, the taxable person will be the financial intermediary, as defined in these frequently asked questions, who makes the delivery to the acquirer of the underlying securities by virtue of the settlement of the derivative financial instrument.
If the person acquiring on their own account is a credit institution or an investment services company that may be a taxable person in the terms indicated in these frequently asked questions, it will be the taxable person of the tax in accordance with article 6.2.a) of the Tax Law. Otherwise, the taxable person will be the entity that provides the service of depositing the securities on behalf of the acquirer pursuant to article 6.2.b) 4 of the Tax Law, provided that a financial intermediary does not intervene in said acquisition. of those provided for in numbers 1, 2, and 3, of article 6.2.b) of the Tax Law.
When the corporate event is carried out outside a trading center and the activity of a systematic internalizer and involves the acquisition of securities subject to tax, to the extent that the agent entity acts by mandate of the issuer and, therefore , cannot be considered to receive the order from the purchaser of the securities, given that none of the circumstances provided for in number 3 of article 6.2.b) of the Tax Law will occur, the taxable person will be the entity that provides the service of deposit of the aforementioned securities on behalf of the acquirer by virtue of number 4 of letter b) of the aforementioned article 6.2, unless the case provided for in letter a) of the same article is applicable.
In the case of acquisitions of securities subject to tax that derive from the execution or liquidation of convertible or exchangeable obligations or bonds, when the acquisition is carried out outside of a trading center and the activity of a systematic internalizer, the taxable person will be the financial intermediary (susceptible to being a taxable person in the terms indicated in these frequently asked questions) who delivers the securities subject to tax to the acquirer of the same in accordance with number 3 of article 6.2.b) of the Tax Law.
If a financial intermediary does not intervene in the delivery, the taxable person will be the entity that provides the deposit service of such securities on behalf of the purchaser referred to in number 4 of the same article. However, the taxable person will be the acquirer himself when it is a credit institution or investment services company (susceptible to being a taxable person in the terms indicated in these frequently asked questions), in accordance with the provisions of article 6.2.a) of the Tax Law.
Given that the acquisition will be carried out outside a trading center and the activity of a systematic internalizer, and since none of the circumstances provided for in number 3 of article 6.2.b) of the Tax Law will occur, the The taxable person will be the entity that provides the service of depositing the securities on behalf of the acquiring employee, in accordance with the provisions of number 4 of the aforementioned article 6.2.b), that is, the depositary entity in which the employee has open the account in which the values subject to delivery are recorded.
When the acquisition of the shares is carried out within the framework of a discretionary portfolio management contract signed directly by the acquiring investor with a collective investment institution management company and it is the latter that transmits the purchase order for the securities, the Taxable subject will be the member of the market that executes the operation. However, when one or more financial intermediaries intervene on behalf of the acquiring investor in the transmission of the order to the market member, the taxable person will be the financial intermediary (susceptible to being a taxable person in the terms indicated in these frequently asked questions) located closest. close to the acquiring investor in the intermediation chain, which will not be the management company of collective investment institutions (number 1 of article 6.2.b) of the Tax Law).
When the acquisition of the shares is carried out within the framework of a discretionary portfolio management contract signed directly by the acquiring investor with a credit institution, which delegates the provision of said service to a collective investment institution management company, and it is said management company that transmits the purchase order without the credit institution intervening in said transmission, the taxable person will be, as in the previous case, the member of the market that executes the operation. However, when one or more financial intermediaries intervene on behalf of the acquiring investor in the transmission of the order to the market member, the taxable person will be the financial intermediary (susceptible to being a taxable person in the terms indicated in these frequently asked questions) located closest. close to the acquiring investor in the intermediation chain, which will be neither the management company of collective investment institutions nor the credit entity with which the investor maintains the contractual relationship (number 1 of article 6.2.b) of the Tax Law ).
When the acquisition of the shares is carried out within the framework of a discretionary portfolio management contract signed directly by the acquiring investor with a credit institution and it is the latter that provides said service, the taxable person will be said credit institution, either for being the member of the market that executes the operation, or for being the financial intermediary (susceptible to being a taxable person in the terms indicated in these frequently asked questions) located closest to the acquiring investor in the event that there is an intermediation chain (number 1 of article 6.2.b) of the Tax Law).
Notwithstanding all of the above, in the event that the acquiring investor is a credit institution or an investment services company that is authorized for trading on its own account and makes the acquisition subject to tax on its own account, the taxable person will be said entity (article 6.2.a) of the Tax Law).
The compartments of investment funds and investment companies constitute differentiated investment structures within the same collective investment institution, characterized by having their own investment policy, as well as specifically attributed assets or capital represented by their own shares or Actions.
However, its creation is carried out on the basis of a single contract constituting an investment fund or under the corporate statutes that correspond to an investment company, with the fund or company being the one that is globally considered separate assets or holds the legal personality. Consequently, the fund or company is the entity for which the acquisitions are made, regardless of the allocation to each compartment of the acquired securities that is carried out internally by the entity itself or its management company.
Therefore, when the securities subject to tax are acquired by a collective investment institution, whether open or closed and regardless of the legal form it adopts, that has different compartments and said securities are assigned to one of said compartments, the For tax purposes, the acquirer and taxpayer will be the collective investment institution itself and not the compartment to which the values are assigned.
In the event that a pension fund that implements the investments of several pension plans integrated into it makes an acquisition of securities subject to tax, the acquirer and taxpayer will be the pension fund itself, regardless of whether the values are assigned to the investments of one of the plans integrated therein. In this regard, it must be taken into account that pension plans are agreements in the form of a contract, constitutive act or regulations that define the right of the people in whose favor they are established to receive income or capital for retirement or other contingencies, as well as the contribution obligations to them, and which, therefore, do not have the legal nature of a separate entity or patrimony.
In the event that a pension fund that channels the investments of other pension funds and pension plans attached to other funds makes an acquisition of securities subject to tax, the acquirer and taxpayer will be the pension fund itself that has made the purchase. acquisition, regardless of whether the values are assigned to the investments of one of the pension funds that channel their investments through it or one of the pension plans attached to one of those funds. In this regard, it must be taken into account that pension funds that channel their investments through an open pension fund only hold ownership of the shares in said fund.
In the event that an insurance entity makes an acquisition of securities subject to tax to assign them to an investment portfolio corresponding to a specific policy, the acquirer and taxpayer will be the insurance entity, regardless of the investment portfolio of the policy to which that the values are assigned, since the policyholder or beneficiary of the insurance, as appropriate, is the owner of the economic rights derived from the contract, but is not the owner of the investments that the insurance entity maintains to meet the payment of said rights. economical.