Law 28/2022 to promote the ecosystem of emerging companies has been published in the BOE of December 22.

TAX S ON THE INCOME OF NATURAL PERSONS

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 delivery of shares or participations to employees of emerging companies, the amount of the exemption rises from 12,000 to 50,000 euros per year. The exemption will also be applicable when said 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 participations.

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 the Law 28/2022, by which,

   A special rule for valuing labor income in kind is introduced with the purpose of clarifying the value corresponding to the shares or participations granted to workers in emerging companies.

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

   section 1 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 increasing the rate from 30% to 50% and increasing the maximum base from 60,000 to 100,000 euros.

   The term for subscribing shares or participations is generally increased from three to five years, starting from the establishment of the entity, and up to seven for certain categories of emerging companies.

   Furthermore, for founding partners of emerging companies, the application of this deduction is allowed regardless of their percentage of participation in the entity'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 from 10 to 5 the number of tax periods prior to moving to Spanish territory during which the taxpayer cannot have been a tax resident in Spain.

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

   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 case of disability) or, in the event of non-existence of marital ties, the parent of the children, provided that certain conditions are met.

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

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

   Work income will be considered as income derived directly or indirectly from participations, shares or other rights, including success commissions, that grant special economic rights in certain entities, obtained by the administrators, managers or employees of those entities or their entities. managers or entities of your group.

   These returns will be integrated into the tax base for 50% of their amount, without any exemption or reduction resulting from application, when certain requirements are met.

CORPORATION TAX

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

1. Taxation of emerging companies at the tax rate of 15% for a maximum period of four years

   article 7 of Law 28/2022 on the taxation of emerging companies establishes that,

   They will be taxed in the first tax period in which, having said condition, the tax base is positive and in the following three , as long as 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.

   In this way, the initial taxation of emerging companies is softened, reducing the corporate tax rate from the current 25 % to 15 % for a maximum of four years, as long as the company maintains emerging company status.

2.  Postponement of payment of tax debts by emerging companies during the first two years of activity

   section 1 of article 8 of Law 28/2022, which regulates the deferral of taxation of an emerging company, establishes that,

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

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

   To enjoy this benefit, it will be necessary for the applicant to be up to date with compliance with their tax obligations on the date on which the deferral request is made and, in addition, for the self-assessment to be submitted within the established period. The payment of complementary self-assessments may not be postponed, according to the procedure established in this section.

   The payment of the deferred tax debt will be made within a period of one month from the day following the expiration of each of the indicated deadlines, without accrual of late payment interest.

   Thus, the deferral of payment of tax debts during the first two years of activity is extended to all emerging companies.

3.  No obligation to make installment payments for emerging companies during the first two years of activity

   Section 2 of article 8 of Law 28/2022, which regulates the deferral of taxation of an emerging company, establishes that,

   They will not have the obligation to make the installment 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, which approves the consolidated text of the Law on the Income Tax of Non-Residents, respectively, that must be made on account of the settlement corresponding to the tax period immediately following each of those referred to in the previous section, as long as the status of emerging company is maintained.

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 work income in kind

   letter a) 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 28 November, of the Income Tax of Physical Persons and of partial modification of the laws of the Taxes on Corporations, on the Income of Non-Residents and on Wealth, received by natural persons, 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 Spaniards residing abroad and returnees”

   The regulatory modification consists of the express incorporation of the exemption of the income from work in kind cited in article 42.3 LIRPF , thereby regulating the exemption of income from work in kind contained in article 42.3 LIRPF in a homogeneous manner with personal income tax:

   • Deliveries to employees of products at discounted prices that are made in canteens or company canteens or social commissaries

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

   • Premiums or fees paid to insurance entities for illness 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 in charge of providing the public service of collective passenger transport with the purpose of promoting the movement of employees between their place of residence and the workplace,

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

   This represents the elevation to legal status of a criterion that had already been maintained (Consultation DGT V0401-16).