Informative note on the completion in form 187 of the operations related to the transitional regime applicable to SICAVs (DT 41ª LIS)
INFORMATION NOTE ON MODIFICATIONS IN FORM 187 , Informative Declaration. Shares and participations representing the capital or assets of collective investment institutions and annual summary of withholdings and income on account of Personal Income Tax, IS and IRNR in relation to income or capital gains obtained as a result of transfers or reimbursements of those shares and participations and subscription rights, AS A CONSEQUENCE OF THE TRANSITIONAL REGIME APPLICABLE TO SICAVS IN CASE OF DISSOLUTION AND LIQUIDATION included IN THE NEW FORTY-FIRST TRANSITIONAL PROVISION OF LAW 27/2014, OF NOVEMBER 27, CORPORATION TAX (DT 41 LIS).
IMPORTANT: The modifications reported regarding model 187 correspond to the modifications published in Order HFP/823/2022, of August 24, which approves model 345 of "Informative Declaration. Plans, pension funds and alternative systems. Friendly Societies, Insured Pension Plans, Individual Systematic Savings Plans, Company Savings Plans and Dependency Insurance. Annual declaration of participants, contributions and contributions" and establishes the conditions and procedure for its presentation, and modifies Order HAP/1608/2014, of September 4, which approves model 187 of "Informative declaration. Shares and participations representing the capital or assets of the Collective Investment Institutions and annual summary of withholdings and income on account of IRPF, IS and IRNR in relation to income or capital gains obtained as a consequence of transfers or reimbursements of those shares and participations and subscription rights." (BOE August 29) and will be applicable to the information for fiscal year 2022 to be presented in 2023.
-
PRELIMINARY CONSIDERATIONS: TRANSITIONAL REGIME APPLICABLE TO SICAVS IN CASE OF DISSOLUTION AND LIQUIDATION as a consequence of the NEW TAX REGIME of SICAVs.
Law 11/2021, of July 9, on measures to prevent and combat tax fraud, establishes a new tax regime for variable capital investment companies (SICAV) by establishing additional requirements so that these companies can apply the rate 1 percent tax. This modification of the tax regime is accompanied by a transitional regime for SICAVs that agree to their dissolution and liquidation, which is intended to allow their partners to transfer their investment to other collective investment institutions that meet the requirements to maintain the tax rate of the 1 percent in Corporate Tax.
The transitional regime applicable to SICAVs in the event of dissolution and liquidation is included in the new forty-first transitional provision of Law 27/2014, of November 27, on Corporate Tax (DT 41 LIS). This provision establishes the following:
-
The variable capital investment companies to which the provisions of letter a) of section 4 of article 29 of this Law in its wording have been applicable may agree to their dissolution and liquidation, with application of the tax regime provided for in this transitional provision. in force on December 31, 2021, that during the year 2022 they validly adopt the dissolution agreement with liquidation, and carry out after the agreement, within six months after said period, all the necessary legal acts or businesses according to the regulations. commercial until the registration cancellation of the company in liquidation.
-
The dissolution with liquidation of variable capital investment companies carried out in accordance with the provisions of section 1 above will have the following tax regime:
-
Exemption from the Tax on Property Transfers and Documented Legal Acts, concept "corporate operations", taxable event, "dissolution of companies", of article 19.1.1. ° of the consolidated text of the Tax Law, approved by Royal Legislative Decree 1/1993, of September 24.
-
During the tax periods ending until the registration cancellation, the provisions of letter a) of section 4 of article 29 of this Law in its wording in force on December 31, 2021 will continue to apply to the company in liquidation.
-
For the purposes of Personal Income Tax, Corporation Tax or Non-Resident Income Tax, the partners of the company in liquidation will not include in the tax base the income derived from the liquidation of the entity, always that the total amount of money or assets corresponding to them as a liquidation fee be reinvested, in the manner and with the conditions provided for in the following paragraphs, in the acquisition or subscription of shares or participations in any of the collective investment institutions provided for in the letters a) or b) of section 4 of article 29 of this Law, in which case the new shares or participations acquired or subscribed will retain the value and date of acquisition of the shares of the company under liquidation.
The partner must inform the company in liquidation of his decision to comply with the provisions of the previous paragraph of this letter c), in which case the entity in liquidation will refrain from making any payment of money or delivery of goods to the corresponding partner. as a settlement fee. Likewise, the partner must provide the company with documentation proving the date and value of acquisition of the shares, in the event that the company does not have such information.
The purpose of the reinvestment must be the entire money or assets that make up the member's liquidation fee, without partial reinvestment being possible, and may be carried out in one or more collective investment institutions.
The member will communicate to the collective investment institution in which the reinvestment is to be made his own identifying data, those corresponding to the company in liquidation and its managing entity and depositary entity, as well as the amount of money or assets that make up the quota. liquidation to be reinvested in the destination institution. For these purposes, the partner will complete the corresponding subscription or acquisition order, authorizing said institution to process said order with the company in liquidation.
Once the order is received by the company in liquidation, the reinvestment must be carried out through the transfer ordered by the latter to its depositary, on behalf and by order of the partner, of the money or assets object of the reinvestment, from the accounts of the company in liquidation. to the accounts of the collective investment institution in which the reinvestment is made. Said transfer will be accompanied by information regarding the values and dates of acquisition of the shares of the company in liquidation to which the reinvestment corresponds.
For the treatment provided for in the first paragraph of this letter c to be applicable, the reinvestment must be carried out before seven months have elapsed from the end of the period established in section 1 above for the adoption of the dissolution agreement with liquidation. .
-
The acquisitions of securities referred to in Law 5/2020, of October 15, on the Tax on Financial Transactions, that take place as a consequence of the provisions of sections 1 and 2 of this transitional provision, provided that they are carried out reinvestment in accordance with the provisions of letter c) of this section will be exempt from the Financial Transaction Tax.
The right to apply the provisions of the previous paragraph will be accredited through the subscription or acquisition order referred to in the fourth paragraph of letter c) of this section and, provisionally until the contribution of said order, through the agreements to dissolve the company and divide the resulting assets among the partners, as well as through the communication from the partner referred to in the second paragraph of the aforementioned letter c).
-
-
There will be no obligation to make payments on account of the corresponding personal tax of the partner on the income derived from the liquidations of the variable capital investment companies referred to in this transitional provision, when the partners apply for the application of the regulated reinvestment regime. in letter c) of section 2 above.
-
The provisions of this transitional provision will not apply in the cases of dissolution with liquidation of the free investment companies referred to in article 33 bis of Law 35/2003, of November 4, on Collective Investment Institutions, nor of listed variable capital index investment companies referred to in article 79 of the Regulations for the development of Law 35/2003, of November 4, on collective investment institutions, approved by Royal Decree 1082/2012, of November 13 July.
-
-
MODIFICATIONS / IMPLICATIONS IN THE INFORMATIVE DECLARATION MODEL 187
As a consequence of this transitional regime and its tax implications, model 187 , “Informative Declaration” is introduced in . Shares and participations representing the capital or assets of collective investment institutions and annual summary of withholdings and income on account of Personal Income Tax, IS and IRNR in relation to income or capital gains obtained as a consequence of transfers or reimbursements of those shares and participations and subscription rights” , a series of modifications that are intended to identify the operations that are carried out under the protection of the transitional regime regulated in the forty-first transitional provision of Law 27/2014, of 27 of November, of the Corporate Tax (DT 41 LIS), introduced by Law 11/2021, of July 9, on measures to prevent and combat tax fraud.
This transitional regime allows partners of SICAVs that choose to dissolve (by not meeting the requirements to continue paying 1% Corporate Tax) to benefit from a regime of deferral of the income revealed at the time of dissolution. and liquidation of the SICAV.
Specifically, the following modifications are introduced in the registration designs of model 187:
-
A new field called “IDENTIFICATION OF THE COMPANY IN LIQUIDATION OR LIQUIDATED” is created. This field must only be completed when the acquisition or subscription operation described in the “TYPE OF OPERATION” field is being reported, with code “R”.
-
Two new keys are incorporated in the “TYPE OF OPERATION” field:
A: Acquisitions or subscription of shares or participations in collective investment institutions provided for in letters a) or b) of section 4 of article 29 of Law 27/2014, of November 27, on Corporate Tax, which are reinvestment of liquidation fee of the SICAVs by which it is not appropriate to integrate the income derived from the liquidation of the entity into the tax base, by application of the regime regulated in letter c) of section 2 of the forty-first transitional provision of the same Law.
T: Transfer (cancellation) derived from the liquidation of variable capital investment companies covered by the forty-first transitional provision of Law 27/2014, of November 27, on Corporate Tax, in which, by application of the regulated reinvestment regime in letter c) of section 2, it is not appropriate to integrate the income derived from the liquidation of the entity into the tax base.
Regarding these keys, the following is reported:
-
The “T” code must be completed in the year in which the general meeting of shareholders is held in which the dissolution is agreed and liquidation of the SICAV, as well as the project for the division of corporate assets resulting from said liquidation, even if the deed documenting said operation is executed and registered in the Commercial Registry in a subsequent year.
In these cases, in which the “TYPE OF OPERATION” field is completed with the key “T”:
-
The field “DATE OF OPERATION” must include the date on which the general meeting of shareholders is held in which the agreement to dissolve and liquidate the SICAV is adopted.
-
The field “ NUMBER OF SHARES OR PARTICIPATIONS ACQUIRED OR DISPOSED / NUMBER OF SUBSCRIPTION ERDS SOLD” , will be completed with the number of shares or participations of the SICAV covered by the reinvestment regime regulated in the letter c) of section 2 of DT 41 LIS of which the declared NIF was the holder.
-
The field “AMOUNT OF THE ACQUISITION OR DISPOSAL” will include the entire settlement fee corresponding to the declared NIF, that is, it will also include the credit rights that have not yet been collected, as well as, where applicable, the part of the liquidation fee that the partner has received in kind (that is, through the allocation of shares or participations in other IICs that formed part of the final liquidation balance of the SICAV). This field will, therefore, collect the amount of the settlement fee that the member must receive.
-
-
The “R” code must be completed in the year in which the reinvestment of the settlement fee awarded through the acquisition or subscription occurs. of shares or participations in one or more other collective investment institutions by application of the deferral regime regulated in DT 41 LIS.
In these cases, in which the “TYPE OF OPERATION” field is completed with an “R”:
-
The field “DATE OF THE OPERATION” must include the date on which the effective acquisition or subscription of shares or participations in the new IIC occurs, through the reinvestment of the total or partial amount. of the liquidation fee awarded in the dissolution of the SICAV.
-
The field “NUMBER OF SHARES OR PARTICIPATIONS ACQUIRED OR DISPOSED/NUMBER OF SUBSCRIPTION ERDS SOLD” will record the number of shares or participations acquired in the new IIC.
-
The field “AMOUNT OF THE ACQUISITION OR DISPOSAL” will include the actual acquisition price of the new shares or units in which the reinvestment takes place. For these purposes, it must be taken into account that, according to CV0574-22 of the DGT, when the partner has received a part of his liquidation fee in kind (that is, through the assignment of shares or participations of other IICs that were part of the final liquidation balance of the dissolved company), the amount that must be entered in this field will coincide with the net asset value of said shares or units on the day on which the general meeting of shareholders was held in which the dissolution and liquidation was agreed. of the SICAV. In any case, it must also be taken into account that the amount entered in this field may not coincide in its entirety with the amount obtained in the disposal reported with code "T", when the reinvestment is made in several IIC or when there are "peaks" , that is, when the result of dividing the amount to be reinvested by the unit acquisition price of the IIC in which the liquidation fee that the partner must receive in cash is reinvested does not give a whole number of shares or units, if The fund did not allow fractions, but rather decimals, and it was not necessary to report such differences or “peaks” in any box of the model.
-
The SICAV that has been dissolved and liquidated must be identified in field “IDENTIFICATION OF THE COMPANY IN LIQUIDATION OR LIQUIDATED” (either in the same year or, when applicable, according to the deadlines provided for in the transitional regime, in a previous tax period).
-
-
-