Over the past year, the following significant amendments have been made to Spanish law on the taxation of companies:
On 9 April 2022, Law 7/2002, of 8 April, on waste and contaminated soil for a circular economy was published in the Official State Gazette. The Law includes, among other things, the entry into force, as of January 2023, of the Tax on non-reusable plastic packaging (Plastic Packaging Tax) and the tax on the deposit of waste in landfills, incineration and co-incineration of waste.
On 29 December 2021, Law 22/2021, of December 28, on the General State Budget for the year 2022 was published in the Official State Gazette. The main measures contained in this law regarding Corporate taxation are the following:
- A minimum taxation rule is introduced for those CIT taxpayers with a net turnover in the 12 months prior to the date on which the tax period begins of at least 20 million euros and for taxpayers who are taxed under the special tax consolidation regime for CIT purposes, regardless of the net turnover amount.
According to this rule, the above- mentioned taxpayers’ net tax due (defined as tax due after applying tax relief and deductions) may not be less than the result of applying 15% to the taxable income reduced or increased for additions/reductions related to the tax loss levelling-off reserve (eligible small entities) and reduced by the special investment reserve of the Special economic and tax regime of the Canary Islands.
This measure will come into effect from the tax periods starting on 1 January 2022.
The minimum taxation rule will not be applicable to taxpayers taxed at 10%, 1% or 0% CIT tax rates or to SOCIMIs.
There is a special minimum tax rate for the following entities:
For newly created entities taxed at the special 15% tax rate the minimum net tax due will be 10% of taxable income.
For those entities that qualify as credit institutions and those engaged in exploration, research, and exploration of hydrocarbons, the rate indicated will be 18% instead of the standard 15%.
For cooperatives, the minimum net tax due may not be less than 60% of gross tax due.
For entities in the Canary Islands Special Zone (ZEC), the positive taxable income used to calculate the minimum net tax due will not include the part of the taxable income corresponding to operations materially and effectively carried out in the ZEC that are taxed at the special reduced tax rate.
The following rules must be considered while calculating the minimum tax rate:
- Firstly, the gross tax due will be reduced by the amount of the applicable tax relief, including tax relief under the Special economic and tax regime of the Canary Islands and tax credits for investments made by Port Authorities. Tax credits for the avoidance of double taxation will then be applied, within the limits set forth for all these incentives.
- If after these incentives have been applied, the resulting tax due is under the minimum net tax due calculated according to the above-mentioned rules, then the resulting tax due will be exceptionally considered the net tax due.
- If after the incentives in section 1 above have been applied, the resulting tax due exceeds the minimum net tax due, then any other applicable tax credits will be applied (within the limits set forth for each of them) up to the amount of the minimum net tax due.
- Tax credits under the Canary Islands Special Economic Tax Regime may be applied within their own limits even if the amount resulting from their application is under the minimum net tax due.
- Incentives not applied due to the application of the minimum net tax due threshold may be applied in the following tax years in accordance with the relevant regulations.
- The special CIT tax regime for companies that lease housing incentive consisting of 85% relief with respect to the part of the gross tax due related to qualifying income is reduced to 40% for the tax periods starting on 1 January 2022.
- The CIT minimum taxation rule is also introduced for NRIT taxpayers that act through a PE in Spain, effective for tax periods starting on 1 January 2022.
On 22 December 2021, the Instrument of ratification of the Multilateral Convention (MLI) to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS), made in Paris on 24 November 2016, was published in the Official State Gazette. The measures resulting from the modifications introduced in each country as a result of the MLI will come into effect in Spain on 1 January 2023 in order to counter international tax avoidance by large multinationals and will also allow the global network of Double Taxation Avoidance Conventions (DTAs) to be updated with the measures resulting from the BEPS project.
On 9 November 2021, Royal Decree-Law 26/2021, enacted on 8 November, was published in the Official State Gazette. This law is enacted as a consequence of three resolutions of the Spanish Supreme Court declaring void and unconstitutional certain sections of the Law regulating local taxes with respect to the Local tax on the increase in Urban Land Value. The resolutions made it impossible to calculate taxable amount for this local tax. Therefore, a new regulation, applicable as from 10 November 2021, has been adopted. This regulation includes a new provision according to which transfers of land in which it is verified that there is no increase in land value between the purchase and transfer dates are not subject to the tax.
Additionally, two methods are established to calculate the taxable base:
- Objective system: As in the previous system, the cadastral value is multiplied by certain coefficients depending on the number of years which have elapsed between the purchase date and the transfer date. Such coefficients will now be those approved by municipalities, up to the maximum limit fixed by the law, and which will be updated annually to reflect the evolution of the real estate market. Municipalities will also be able to reduce the cadastral value by up to 15% exclusively for the purposes of this tax.
- Real increase in value system: taxpayers will now have the option to be taxed on the actual increase in value when it is lower than the taxable amount resulting from the application of the objective system. The increase in value will be the difference between the transfer and purchase value, considering, in both cases, the higher between the values documented in acquisition/transfer titles and the values verified by the tax authorities.
On 3 November 2021 Royal Decree-Law 24/2021, of 2 November 2021, was published, transposing several European Union directives. The main tax amendments included in this law are:
- The VAT exemption is extended to supplies of services and goods to and imports of goods by certain European Union institutions or bodies, offices or agencies established under EU law to respond to the COVID-19 pandemic, provided that the imported goods or goods and services purchased are not used for subsequent supply for consideration by the Commission or the entity benefitting from the exemption.
- An exemption is introduced with respect to transfer tax, stamp duty and capital duty regarding:
- The issuance, transmission and redemption of covered bonds and mortgage shares and mortgage transfer certificates, as well as their repayment.
- Transfers of assets to constitute separate assets provided for in the event of bankruptcy of the issuing entity and the transfer of loans to another entity
Law 14/2021, enacted on 11 October 2021 and in force as from 13 October 2021, has modified with effect from 1 January 2021 the tax regime provided in Law 49/2002 for non-profit entities and tax incentives for patronage.
In particular, the definition of non-profit entities (donee entities that qualify for CIT tax credit) has been widened, assimilating certain similar foreign entities to Spanish non-profit entities to make Spanish tax law compatible with EU law.
Law 11/2021 on the prevention and fight against tax fraud, and transposing EU Directive 2016/1164 was passed on 9 July 2021 and published in the Official State Gazette on 10 July 2021. The main amendments included in this legislation that affect Corporate taxation affect different laws and taxes:
- Regarding the General Tax Law and other general tax regulations, the following amendments stand out:
- The prohibition of tax amnesties.
- The modification of the surcharge for late payment without prior notification
- The late interest regime is clarified in cases where an inappropriate refund is obtained .
- An obligation is introduced that the accounting support computer or electronic systems comply with certain technical requirements that guarantee the integrity, conservation, accessibility, traceability and inalterability of the accounting records, along with a specific penalty regime.
- The non-resident representative system is adapted to comply with EU legal requirements.
- The threshold for inclusion in the list of tax debtors is reduced to 600,000 euros, jointly and severally liable parties being .
- Several amendments are introduced regarding reductions applicable to tax penalties.
- The general limit on cash payments on operations in which any of the intervening parties acts as an entrepreneur or professional is reduced to 1,000 euros. In the case of individuals with their tax domicile outside Spain and that are not acting as entrepreneurs or professionals, the limit on cash payments will be 10,000 euros.
- The term tax haven is replaced by that of non-cooperative jurisdiction, a concept that also includes countries with no income taxes and countries with which there is no effective exchange of information.
- “Reference value” is introduced as a real estate valuation criterion for Transfer Tax, Inheritance and Gift Tax and Wealth Tax. This value also affects the anti-abuse clause contained in the Ley del Mercado de Valores. Reference value is an administrative value calculated by the Catastro that operates as a minimum valuation criterion as regards the aforementioned taxes.
- Regarding VAT, particularly significant is the amendment to the special tax grouping regime, clarifying that the dominant entity will be the offending party for any breaches of the specific obligations listed in this tax regime, including the obligations deriving from the payment of the tax debt, the request for compensation or the refund resulting from the aggregate declaration-settlement corresponding to the corporate group, it being responsible for the veracity and accuracy of the amounts and qualifications reported by the dependent entities that are included in the aggregate declaration-settlement. Dependent entities will be considered, for these purposes, as jointly and severally liable for the payment of the penalties.
- Regarding CIT, the most important amendments refer to the implementation of Council Directive 2016/1164, of 12 July 2016 (ATAD Directive). In particular, the following CIT reforms have been implemented:
- The existing CFC tax transparency regime is amended. In this regard, the imputation of income that occurs under this regime no longer affects only the income obtained by entities owned by the taxpayer but also the income obtained by their permanent establishments abroad. Likewise, new types of income are introduced that must be subject to imputation under this regime, such as that deriving from dividends, financial leasing operations or insurance, banking and other financial activities.
- Exit tax guarantees that, when a taxpayer transfers his assets or his tax residence outside the tax jurisdiction of the State, that State taxes the capital gains generated in its territory, even if they have not been realised.
The CIT Law established that when residence is changed to another Member State of the European Union, that exit tax could be deferred, at the taxpayer’s request, until the date of transfer to third parties of the assets concerned.
In this regard, and in accordance with the ATAD Directive, the regime is modified with effect from the tax periods starting on 1 January 2021, replacing this deferral with the possibility of splitting payment of the exit tax over five years, when the change of residence is made to another Member State or a third country that is a party to the European Economic Area Agreement, certain additional rules being established in the event that such a split is requested.
- In parallel, when the transfer of assets has been subject to an exit tax in a Member State of the European Union, the value determined by that Member State will be accepted as a tax value in Spain, unless it does not reflect the market value.
- Aside from the ATAD Directive, additional requirements are established for investment companies with variable capital (SICAV) to apply the 1% tax rate, with effect from the tax periods starting on or after 1 January 2022.
According to the previous regulation, the number of shareholders required for the application of the 1% rate was, in general, 100 shareholders, without requiring each to make a minimum investment which made it common for one or more persons to hold a very high percentage interest while others had an economically insignificant one. This practice distorted the collective nature that justified the application of the reduced tax rate.
In order to strengthen this collective character, objective requirements are established that the shareholders must meet to qualify for the application of the 1% tax rate (in general, shareholders must have a minimum interest of 2,500 euros and only those who meet this condition for at least three quarters of the tax period are computed, although there are certain special rules).
This modification is accompanied by a transitional regime for SICAVs that agree to their dissolution and liquidation, so that the shareholders can transfer their investment to other collective investment institutions that meet the requirements to maintain the 1% CIT tax rate.
- New requirements are included that must be met by producers who are responsible for the execution of foreign production of feature films in order to apply the tax credit for film production.
- Regarding Non- Resident Income Tax the most significant amendments introduced by Law 11/2021 are the following:
- Regarding the representative of non-residents, it is specified that his appointment is not mandatory in the case of taxpayers who are resident for tax purposes in another EU Member State or in States that are part of the European Economic Area that are not an EU Member State when there are rules on mutual assistance in the exchange of tax information and collection.
- Regarding cases where the Tax Administration may require the appointment of a representative, the amount or characteristics of the income obtained are modified so that both requirements (amount and characteristics) must concur simultaneously. The possession of real estate in Spanish territory is included .
- A new trigger of exit tax is included regarding assets assigned to a permanent establishment located in Spanish territory that moves its activity abroad. Such transfer will bring a tax period to an end.
- Such transfer will also trigger the end of the tax period.