Law 28/2022 on the promotion of the startup ecosystem was published in the BOE on December 22.

TAX S ON PERSONAL

The Third Final Provision of Law 28/2022, of December 21, introduces the following modifications with effect from January 1, 2023 in Law 35/2006, of November 28, on Personal Income Tax

1. Earned incomes in kind

   letter f) of article 42.3 of the LIRPF is modified by section Two of the Third Final Provision of Law 28/2022, so that,

   In the case of the delivery of shares or interests to employees of start-up companies, the amount of the exemption increases from 12,000 to 50,000 euros per year. The exemption will also apply when such delivery is a consequence of the exercise of purchase options previously granted to them.

2. Temporary attribution

   A letter m) is added to section 2 of article 14 of the LIRPF by section One of the Third Final Provision of Law 28/2022, by virtue of which,

   A special temporary imputation rule is established for work income that is not exempt because it exceeds the amount provided for in the previous point, which allows its imputation to be deferred until the tax period in which certain circumstances occur, and in any case, within a period of ten years from the delivery of the shares or interests.

3. Valuation of income in kind

   A new letter g) is added in number 1 of section 1 of article 43 by section Three of the Third Final Provision of Law 28/2022, by which,

   A special rule for the valuation of benefits in kind is introduced in order to clarify the value corresponding to shares or interests granted to employees of emerging companies.

4. Deduction for investment in a new or recently created company

   Section of article 68 of the LIRPF is modified by Section Four of the Third Final Provision of Law 28/2022, so that,

   The deduction is increased by raising the rate from 30% to 50% and increasing the maximum base from 60,000 to 100,000 euros.

   The period for subscribing to shares or interests is generally increased from three to five years from the date of incorporation of the entity, and up to seven years for certain categories of emerging companies.

   Furthermore, founding partners of start-ups are allowed to apply this deduction regardless of their percentage of participation in the company's share capital.

5.  Special scheme applicable to employees posted to Spanish territory

   article 93 of the LIRPF is modified by section Five of the Third Final Provision of Law 28/2022, so that,

   Access to the regime is improved by reducing the number of tax periods prior to moving to Spanish territory during which the taxpayer cannot have been a tax resident in Spain from 10 to 5.

   The regime is extended to workers who travel to Spanish territory to work remotely, whether or not ordered by the employer, using exclusively computer, telematic and telecommunications means and systems, as well as to managers of emerging companies regardless of their percentage of participation in the company's share capital.

   In addition, the possibility of benefiting from this special regime is established for the taxpayer's spouse and the taxpayer's children under twenty-five years of age (or whatever their age in the case of disability) or, in the event of non-existence of a marital bond, for the parent of the children, provided that certain conditions are met.

6. Tax qualification of the income obtained from the management of funds linked to entrepreneurship, innovation and the development of economic activity

   A new Additional Provision fifty-third is added by section Six of the Third Final Provision of Law 28/2022, by which,

   Income from work will be considered to be income derived directly or indirectly from shares, stocks or other rights, including performance fees, which grant special economic rights in certain entities, obtained by the administrators, managers or employees of these entities or their managing entities or entities in their group.

   These returns will be included in the tax base at 50% of their amount, without any exemption or reduction being applicable, when certain requirements are met.

CORPORATION TAX

With the entry into force of Law 28/2022, of December 21, the following changes are introduced that affect l taxpayers of the Corporate Tax and the Non-Resident Income Tax who obtain income through a permanent establishment located in Spanish territory, which have the status of an emerging company in accordance with the preliminary title of this law.

1. Taxation of start-ups at a rate of 15% for a maximum period of four years

   Article of Law 28/2022 on the taxation of emerging companies establishes that,

   They will pay taxes in the first tax period in which, having said condition, the tax base is positive and in the following three , provided that they maintain the aforementioned condition, at the rate of 15% in the terms established in section 1 of article 29 of Law 27/2014, of November 27, on Corporate Tax.

   This softens the initial taxation of emerging companies, reducing the corporate tax rate from the current 25%. % to 15 %, for a maximum of four years, provided the company maintains its start-up status.

2.  Deferral of tax debt payments by start-ups during the first two years of activity

   Section 1 of Article 8 Law 28/2022, which regulates the deferral of taxation of a start-up company, establishes that,

   They may request, from the State Tax Administration at the time of filing the self-assessment, the deferral of payment of the tax debt corresponding to the first two tax periods in which the taxable base of the Tax is positive .

   The State Tax Administration will grant the deferral, with exemption from guarantees, for a period of twelve and six months, respectively, from the end of the period for voluntary payment of the tax debt corresponding to the aforementioned tax periods.

   To enjoy this benefit, the applicant must be up to date with his or her tax obligations on the date on which the deferral request is made and, in addition, the self-assessment must be submitted within the established period. The payment of supplementary self-assessments may not be postponed, in accordance with the procedure established in this section.

   Payment of the deferred tax debt will be made within one month from the day following the expiration of each of the periods indicated, without any accrual of late payment interest.

   This means that all start-ups are now eligible to defer payment of their tax debts during the first two years of their activity.

3.  No obligation to make split payments for start-ups during the first two years of activity

   Section 2 of Article 8 of Law 28/2022, which regulates the deferral of taxation of a start-up company, establishes that,

   They will not be required to make the split payments regulated in article 40 of Law 27/2014, of November 27, on Corporate Tax, and 23.1 of Royal Legislative Decree 5/2004, of March 5, approving the revised text of the Non-Resident Income Tax Law, respectively, which must be made on account of the settlement corresponding to the tax period immediately following each of those referred to in the previous section, provided that they maintain the status of emerging company.

INCOME TAX FOR NON-RESIDENTS

The Second Final Provision of Law 28/2022, of December 21, introduces the following modification in the consolidated text of the Non-Resident Income Tax Law, approved by Royal Legislative Decree 5/2004, of March 5 (TRLIRNR).

1.     Exemption from income from work in kind

   Letter ) of section 1 of article 14 of the TRLIRNR is modified by the Second Final Provision of Law 28/2022, being worded as follows:

   “a) The income mentioned in article 7 and the income from work in kind mentioned in section 3 of article 42 of Law 35/2006, of November 28, on Personal Income Tax and partial modification of the laws on Corporate Tax, Non-Resident Income Tax and Wealth Tax, received by individuals, as well as the benefits due to need recognized under Royal Decree 8/2008, of January 11, which regulates the benefit due to need in favor of Spanish residents abroad and returnees”

   The regulatory modification consists of the express incorporation of the exemption of the income from work in kind mentioned in article 42.3 LIRPF , thus regulating in a homogeneous manner with the Personal Income Tax the exemption of income from work in kind contained in article 42.3 LIRPF:

   • Deliveries to employees of products at reduced prices that are made in company canteens or dining rooms or social stores

   • The use of assets intended for social and cultural services of the employed personnel

   • Premiums or fees paid to insurance companies for health coverage

   • The provision of preschool, infant, primary, compulsory secondary, high school and vocational training services by authorized educational centers, to the children of their employees, free of charge or at a price lower than the normal market price.

   • The amounts paid to the entities responsible for providing the public service of collective passenger transport in order to facilitate the movement of employees between their place of residence and the workplace,

   • The delivery to active workers, free of charge or at a price below the normal market price, of shares or interests in the company itself or in other companies in the group of companies

   This means raising to legal level a criterion that was already being maintained (DGT Consultation V0401-16).