Frequently Asked Questions (HTML version)

Entities that may have the status of taxable person in the aforementioned case are credit institutions and investment services companies that, being authorized for negotiation on their own account (letter c) of article 140.1 of the consolidated text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of October 23), make 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 be considered taxable persons. Therefore, securities agencies, portfolio management companies and financial advisory firms are excluded, even if they make purchases of securities subject to tax in their own name in the exercise of the administration of their assets, in accordance with the provisions of the last paragraph of article 143.5 of the consolidated text of the Securities Market Law.

Financial intermediaries that may have the status of taxable person are Spanish or foreign credit institutions and investment services companies authorized to execute orders on behalf of clients (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). In the case of Spanish entities, in accordance with this criterion, credit institutions, securities companies and securities agencies may be considered taxable persons.

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 authorized to execute orders on behalf of clients as referred to in letter b) of article 140.1 of the revised 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 authorized for the deposit or custody of securities, cash and, in general, of the assets that are the object of 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 operating 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 article 6 of the Tax Law.

If the intermediary, who may or may not be the holder of the omnibus account where the securities are recorded, makes the purchases 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, and 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 accordance with the characteristics of the omnibus accounts, that the record of ownership in the name of the purchaser is found in the books of the intermediary, without prejudice to the tax being accrued at the time when the registration entry is made in said omnibus account, since that will be the moment in which said registration entry must be considered to have been made in favor of the acquiring client.

If the counterparty is a credit institution or investment services company that may be a taxable person under 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 makes the acquisition on behalf of another party, the taxable person will be the financial intermediary that may be a taxable person under the terms indicated in these frequently asked questions that receives the order directly from the purchaser.

If the counterparty is not a credit institution or investment services company that may be a taxable person in accordance with the terms set out 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 for 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 that is likely to be a taxable person in the terms indicated in these frequently asked questions that acquires on its own account, outside of a trading centre and the activity of a systematic internaliser, 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, that delivers the underlying securities to the purchaser by virtue of the settlement of the derivative financial instrument.

If the person making the purchase on their own account is a credit institution or an investment services company that is liable to be a taxable person under the terms indicated in these frequently asked questions, it will be the taxable person in accordance with article 6.2.a) of the Tax Law. Otherwise, the taxable person will be the entity that provides the securities deposit service on behalf of the purchaser pursuant to article 6.2.b) 4 of the Tax Law, provided that said acquisition does not involve a financial intermediary as provided for in numbers 1, 2, and 3 of article 6.2.b) of the Tax Law.

Where the corporate event takes place outside a trading venue and the activity of a systematic internaliser and entails the purchase of securities subject to tax, to the extent that the agent entity acts on the orders of the issuer and therefore cannot be considered to have received an order from the purchaser of the securities, given that none of the circumstances provided for in section 3 of article 6.2.b) of the Tax Law will apply, the taxable person will be the entity that provides the deposit service of the aforementioned securities on behalf of the purchaser pursuant to section 4 of letter b) of the aforementioned article 6.2, unless the assumption provided for in letter a) of the same article is applicable.

In the case of acquisitions of securities subject to tax arising from the execution or settlement of convertible or exchangeable obligations or bonds, when the acquisition is made outside a trading centre and the activity of a systematic internaliser, the taxable person will be the financial intermediary (susceptible to being a taxable person in the terms indicated in these frequently asked questions) that delivers the securities subject to tax to the purchaser thereof in accordance with number 3 of article 6.2.b) of the Tax Law.

If a financial intermediary is not involved 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 section 4 of the same article. However, the taxable person will be the purchaser itself 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.

Since the acquisition will be made outside a trading venue and the activity of a systematic internaliser, and since none of the circumstances provided for in section 3 of article 6.2.b) of the Tax Law will occur, 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 section 4 of the aforementioned article 6.2.b), that is, the depositary entity in which the employee has opened the account in which the securities to be delivered are recorded.

When the acquisition of 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 order to purchase the securities, the taxable person will be the market member that executes the transaction. However, when one or more financial intermediaries are involved in the transmission of the order to the market member on behalf of the acquiring investor, the taxable person will be the financial intermediary (which may be a taxable person in the terms indicated in these frequently asked questions) located closest 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 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 market member that executes the operation. However, when one or more financial intermediaries are involved in the transmission of the order to the market member on behalf of the acquiring investor, the taxable person will be the financial intermediary (which may be a taxable person in the terms indicated in these frequently asked questions) located closest to the acquiring investor in the intermediation chain, which will not be the management company of collective investment institutions or the credit institution with which the investor maintains the contractual relationship (number 1 of article 6.2.b) of the Tax Law).

When the acquisition of 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 because it is the market member that executes the operation, or because it is 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 a chain of intermediation (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 to negotiate 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 separate investment structures within the same collective investment institution, characterised by having their own investment policy, as well as specifically allocated assets or capital represented by their own shares or stocks.

However, its creation is carried out on the basis of a single contract constituting an investment fund or under the articles of association that correspond to an investment company, with the fund or the company being the one that is globally considered to be separate assets or has legal personality. Consequently, the fund or company is the entity for which the acquisitions are made, regardless of the allocation of the acquired securities to each compartment carried out internally by the entity itself or its management company.

Therefore, when the securities subject to the tax are acquired by a collective investment institution, whether open or closed and regardless of the legal form it adopts, which has different compartments and said securities are assigned to one of said compartments, for the purposes of the tax, the acquirer and taxpayer will be the collective investment institution itself and not the compartment to which the securities are assigned.

In the event that a pension fund that manages 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 securities are assigned to the investments of one of the plans integrated into it. In this regard, it should be noted that pension plans are agreements in the form of a contract, constitutive act or regulation that define the right of the persons in whose favor they are established to receive income or capital for retirement or other contingencies, as well as the obligations to contribute to them, and that, therefore, they do not have the legal nature of an entity or separate assets.

In the event that a pension fund that channels the investments of other pension funds and pension plans affiliated with other funds makes an acquisition of securities subject to tax, the acquirer and taxpayer will be the pension fund that made the acquisition, regardless of whether the securities are assigned to the investments of one of the pension funds that channel their investments through it or one of the pension plans affiliated with one of these funds. In this regard, it should be noted 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 certain policy, the acquirer and taxpayer will be the insurance entity, regardless of the investment portfolio of the policy to which the securities 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 held by the insurance entity to meet the payment of said economic rights.