3. Tax on the transfer of property rights
4. Tax on Corporate operations
5. Stamp tax
6. Value verification
1. GENERAL OVERVIEW
- Royal Legislative Decree 1/1993 of 24 September, approving the Revised Text of the Tax on the Transfer of Property Rights, Corporate Operations and the Stamp Tax.
- Royal Decree 828/1995 of 29 May, approving the Regulations governing the Tax on the Transfer of Property Rights, Corporate Operations and the Stamp Tax.
Article 1 of the Revised Text of the Tax on the Transfer of Property Rights, Corporate Operations and the Stamp Tax (Royal Legislative Decree 1/1993), defines this tax as one of an indirect nature and that taxes:
- The Transfer of Property Rights (the "Transfer Tax")
- Corporate Operations (also the "Transfer Tax")
- The Stamp Tax
Three different taxable events are involved with three distinct means of taxation that, additionally, must be coordinated with the Value Added Tax (hereinafter called, the "VAT").
In this regard, rules are established in order that the same legal act will not be taxed under several regimes according to the following chart:
ACT TAXED BY INCOMPATIBLE COMPATIBLE Tax on the Transfer of Tax on Corporate Property Rights Operations; Stamp Tax on Public Deeds; VAT Corporate Operations Tax on the Transfer of VAT Property Rights; Stamp Tax on Public Deeds Stamp Tax on Public Tax on the Transfer of VAT Deeds; Property Rights; Tax on Corporate Operations; Gift and Inheritance Tax Stamp Tax on VAT Commercial and Judicial Tax on the Transfer Documents of Property Rights; Tax on Corporate Operations
2.1 Subjective exemptions.
Applicable to the operations performed by the National Government, Public Administrations, Social Security, establishments or foundations, Savings Banks for social or labour purposes and associations of public utility and the Spanish Red Cross.
2.2 Objective exemptions.
Objective exemptions are certain operations recognized in Section B of Article 45 of the Amended Text, among which the following should be emphasized:
(a) Transfers of Securities, whether quoted or not, on the Stock Exchange, which do not imply the transfer of real estate.
(b) Mergers, divisions, contributions of assets, including branches of activity, and exchange of shares, which qualify as reorganizaton of corporations, for tax purposes.
(c) Capital increases motivated by a revaluation of assets authorized by Law.
(d) The transfer of land lots for the construction of dwellings (of official protection - public housing).
(e) Loans, except those guaranteed with mortgages that are subject to the Stamp Tax.
(f) The transfer of real estate to leasing companies in the course of its business activities.
In no case shall exemptions apply to bills of exchange or documents that are used as such.
3. TAX ON THE TRANSFER OF PROPERTY RIGHTS
3.1 Tax on the transfer of property rights.
The conveyance between individuals of property rights for consideration is subject to the Transfer Tax but not subject to VAT, since both taxes are incompatible.
Transactions made by businessmen and professionals in the course of their activities are not subject to the Transfer Tax; neither are the delivery of goods or performance of services that are subject to VAT.
An exception to the foregoing is the delivery or the lease of real estate that even being subject to VAT is exempt from payment (unless the exemption is expressly renounced by the taxpayer).
Taxable events, briefly summarized, are the following:
- Inter vivos, transfers for consideration of personal property or rights that form part of the net worth of natural persons.
- Constitution of in rem rights, loans, guarantees, leases, pensions and administrative concessions (except utilization of real estate or installations in ports or airports).
- Changes in existing rights when it involves capital gains.
- Comparable acts (judicial proceedings to record or recognize a title in fee simple, acts of notoriety, adjudication in payment and payment of debts with resolutory conditions regarding the sale of goods and leases).
(ii) Tax liability.
TAXABLE TRANSACTION TAXPAYERS TAX RATE Transfer of real estate Purchaser 6% Creation and assignment Person in whose favour 6% of in rem rights on real the right is created estate (except guaranties) Acts and contracts on Purchaser 6% personal and real property Creation of in rem rights of Person in whose favour 1% guaranty, pensions and sureties the right is created Granting of loans Borrower 1% Assignment of credit Assignee 1% Transfer of personal property Purchaser 4% and livestock Creation and assignment of Holder of the rights 4% in rem rights on personal or assignee property and livestock (except guaranty) Lease of urban property Lessee Scale of (not subject to VAT) taxation
3.(ii)(ii) Liable parties.
TAXABLE TRANSACTION LIABLE PARTY Loans The Borrowee Lease of urban property The Lessor Others / Subsidiarily for The official in charge of a Registar loans an leases that proceeds to change the registrated nominee of the goods without proof of evidence of the fulfillment of the payment of the tax
3.2 Transfer of shares.
Through the Securities Act, the transfer of shares, quoted or not, are declared exempt. Nevertheless, transfers of securities will be deemed to be the transfer of real estate, taxable under the Transfer Tax at 6 per cent of the value of the contract, if the following two requisites are met simultaneously:
- The securities transferred are representative of the capital stock or the net worth of entities whose assets are composed, at least by 50 per cent, of real estate located in Spain; and,
- The purchaser obtains, directly or indirectly, complete ownership of the entity or a controlling equity position in the entity.
The transfer of shares or participation interests, received in consideration for the capital contribution in kind of real estate, will be taxed at the 6 per cent rate when one year has not elapsed between the capital contribution and the transfer.
The Transfer Tax also treats, in a particular manner, the creation of usufruct. This treatment is used, as a point of reference, by other taxes in the regulation of this legal concept, which is quite common in the Spanish legal panorama.
Three situations of transfers for consideration are offered below, with their respective taxation:
SITUATION TAXATION TAXPAYER Reservation of bare legal Taxation for creation Beneficiary title and creation of of an in rem right the usufruct Reservation of the Taxation for the Purchaser usufruct and transfer of transfer of the bare the bare legal title legal title Transfer of the usufruct Two tax liquidations: Both purchasers and bare legal title to 1) for the transfer of different persons the usufruct; 2) for the transfer of the bare legal title.
(ii) The creation of usufruct.
The calculation of the taxable basis will be made in accordance with the following rules:
- Temporary Usufruct: 2 per cent of the total value of the asset for each year of duration of the usufruct, with a maximum of 70 per cent of the value of the asset (usufruct for 35 years or more).
- Life Usufruct: Maximum value 70 per cent of the assetïs value, reducing one point for each year of the usufructuary age more than 20 years (Valuation limit of 10 per cent).
- Usufruct in favour of a legal person: When it is for an indefinitive period of time or for more than 30 years, it is considered a transfer of full property subject to a subsequent resolutory condition.
In the consolidation of ownership, when the property has been divided into usufruct and bare title by means of a transfer for consideration, the following must be distinguished:
- Consolidation in the bare legal title holder, by completion of the period or death of the usufructuary: the bare legal titleholder must pay the tax levied on the value of the usufruct.
- Consolidation in the usufructuary: the taxation will be that which corresponds to the transfer of legal title to the usufructuary.
- If the consolidation is produced by a legal title different from that which produced the division, the tax assessed will be the greater of those calculated for either the consolidation itself or the legal act which produces the consolidation.
- If the division of ownership was produced without consideration, the consolidation will be governed by the rules of the Gift and Inheritance Tax Act.
4. CORPORATE OPERATIONS
4.1 Tax liability.
The following corporate operations performed by corporations and similar entities (noncorporate legal persons organized for profit, joint-ventures, joint ownership of ships, joint property created inter vivos with business activities, joint property mortis causa) are subject to this tax which is categorized together with the Transfer Tax:
TAXABLE ACT TAXABLE BASE TAXPAYER Incorporation Capital The Company Increase in Capital Nominal amount of The Company capital and issue premiums Decrease of capital Real value of goods Separated or and dissolution of delivered to the dissolved partners corporations shareholders or partners or shareholders Mergers and divisions: Increased capital; Surviving or new merging or being merged capital of the new corporation corporation Contributions by Real value of goods or The Company shareholders to offset rights contributed less losses charges, expenses or debts also transferred Transfer into Spain of Net book value of the The Company the corporate domicile corporation from a non-EC country or from an EC country if the entity was not taxed by a similar tax
(ii) Party subsidiarily liable.
Promotors, directors and liquidators, for the payment of the tax accrued in the corporate operations they have fulfilled, if they have taken charge of the Stock Capital assigned or of the transfer of the goods.
- The capitalization of the share-premium reserve, because the constitution of the reserve was already taxed.
- The change of the corporate purpose.
- The extension of the duration of corporations.
- The reorganization of corporations.
4.3 Tax rate.
The tax rate of 1 per cent will be applied to the taxable basis. VAT can be superimposed if there are contributions in kind.
In the application of the Transfer Tax, it must be kept in mind a number of exemptions recognized in several laws, listed in Article 45 of the new Revised Text.
5. STAMP TAX
5.1 General Overview.
Documented legal acts, subject to the Stamp Tax, share the following general characteristics:
- The document has a notarial, commercial or administrative character.
- The object of the document must be of an economical nature (quantity or thing which can be valued).
The Stamp Tax is compatible with VAT; it is not compatible with the Tax on the Transfer of Property Rights or Corporate Operations in its means of notary documents. It is compatible with those in its two remaining means of commercial and administrative documents.
5.2 Notary documents.
Two types of taxation:
Fixed: in original drafts, primary and secondary copies and affidavits of writings, and notary acts, except simple copies, the tax is levied at 25 ptas. per page.
Variable: 0.5 per cent of the valuation of the subject contained in the primary copies of writings and notary acts if:
- The document has as its object a quantity or a quantifiable value.
- The transaction is capable of being registered in Property, Commercial or Industrial Property Registers.
- The transaction is not subject to the Tax on Transfers of Property Rights, Corporate Operations or the Gift and Inheritance Tax.
The taxable base, as a general rule, is the declared value, which can be verified by the tax authorities.
(ii) Taxpayer and liable party.
The taxpayer is the purchaser. In any other case, the person who requested the document subject to Stamp Tax.
5.3 Commercial documents.
Documents subject to taxation are the following:
- Bills of Exchange.
- Security Interests and transferable Certificates of Deposit.
- Documents that function as a draft.
- Promissory notes, bonds, debentures, and other analogous instruments, provided that they are issued in series for a period of less than 18 months and in which the interests are computed by the difference between the issue price and the reimbursement price.
(ii) Taxpayer and liable parties.
The taxpayers are, as a general rule, the persons who issue the document. In the case of bills of exchange, the taxpayers are:
- If issued in Spain, the drawer.
- If issued abroad, the first holder in Spain.
Any person or entity who colaborates in the negotiation or payment of the commercial documents is jointly liable for the payment of the tax.
(iii) Taxable base.
DOCUMENT TAXABLE BASE Bills of Exchange Quantity drafted - Period > 6 months Double face value Certificates of Deposit Face value Promissory Notes Value of reimbursement Other documents Quantity drafted
The assessed tax figure is found through the application of a progressive scale of tax rates ranging from 0.25 per cent to 0.3 per cent. Payment can be made in cash or with government stamps.
5.4 Administrative documents.
Two types of acts:
- Preventive records in Public Registries involving a tax of 0.5 per cent on the value of the right or interest guaranteed or created, unless performed according to court order.
- Rehabilitation and transfer of noble titles.
In the case of Lis pendens in Public Registries the taxpayer is the person in whose favour the notation is created.
In the case of rehabilitation and transfer of noble titles, the beneficiary.
6. VALUE VERIFICATION
6.1 General Overview.
Value of the goods subject to tax is determined by the higher of the following: Valuation filed by the taxpayer or that one determined by the tax authorities.
No penalties will be imposed if the valuation filed by the taxpayer was in accordance with the valuation criterio of the Net Wealth Tax.
In the case when the tax authorities determine a higher value this will prevail for Net Wealth Tax purposes.
6.2 Pre-emption right.
In the case when the tax authorities values any good in more that 50 per cent of the value filed by the taxpayer, when this declared value does not follows the rules established in the Net Wealth Tax Act the Public Administration has the right to acquire it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For further information contact Florentino Carreno on +341 524 710
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