2019 State Budget Bill of Law Main tax amendments

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On 14 January 2019, Spanish Government published the 2019 draft State Budget Bill of Law (the Bill), which has been sent to Congress of Deputies for further discussions and approval. The following tax amendments have been proposed:

Personal Income Tax (PIT)

In general terms, new tranches would be introduced, increasing the applicable PIT tax rates which would impact in the payroll withholding tax and increasing the tax rates to be applied in the same proportion.

  1. General taxable base tax rates

The Bill proposes to increase of two percentage points (that is, up to 24.50%) the tax rates applicable to the general net taxable base exceeding 130,000 euros and four percentage points (that is, up to 26.50% )for net taxable base over 300,000 euros.

  1. Saving taxable base tax rates

There would be an increase of four percentage points, up to 27%,the tax rates applicable to the saving part of the taxable base exceeding 140,000 euros.

  1. Withholdings and payment on account applicable to recipients of employment income

The tax rates would be increased in two percentage points, up to 47%, for the net taxable income exceeding 130,000 euros and four percentage points (that is, up to 49%)for those exceeding 300,000 euros.

  1. Tax rates applicable to expatriate workers to Spanish territory

The applicable tax rate for expatriate workers to Spanish territory would be increased by four percentage points, up to 49%, with a net taxable income exceeding 600,000.01 euros.

Likewise, the applicable tax rate would be increased by four points (that is, up to 27%) for net taxable income exceeding 140,000 euros corresponding to (i) dividends and other income derived from the participation in the equity of an entity; (ii) interest and other income obtained from the transfer of own capital to third parties; and (iii) capital gains that are revealed on the occasion of the transfer of assets.

Corporate Income Tax (CIT)

Limitation to the Spanish domestic participation exemption on dividend payments and capital gains to be applied by either Spanish or non-Spanish subsidiaries

  1. CIT exemptions

Spanish domestic participation exemption for dividend and capital gains derived from either Spanish or non-Spanish subsidiaries would be limited to 95%.

Likewise, Spanish domestic participation exemption for profit distributions from non-Spanish branches would be limited to 95%.

  1. Limitation to double taxation credit

The tax credit for the avoidance of double taxation for the foreign withholding tax (WHT) borne would be determined as the lower amount of either: (i) the tax burden effectively paid by the Spanish entity (including foreign WHT paid); or (ii) the amount of the CIT that the Spanish entity would have paid if such gross income had been obtained in Spain or the 95% of the amount of the CIT that the Spanish entity would have paid, in case profit from non-Spanish branches is obtained.

  1. Limitation to economic double taxation credit

This tax credit would be limited to 95% of the tax quota that would have been paid on the gross amount in Spain had it been obtained in Spain.

  1. Amendment of the special tax regime applicable to the Spanish Economic Interest Groupings

Spanish Economic Interest Groupings (AIEs) would be subject to a 5% CIT rate on those dividend payments or profit distributions that may correspond to members who reside in Spain for tax purposes, insofar as such income has been generated in fiscal years for which the AIE is taxed under such special regime.

Nonetheless, dividends paid or profits distributed to AIE members that have been subject to imputation would still be untaxed under PIT on distributions.

In this sense, in case the interest in the AIE is transferred, the acquisition value would increase in an amount equal to the 95% of the profits which had not been effectively distributed to the members of the AIE, but attributed to them as income derived from their interests in the fiscal year from their acquisition and their disposal.

  1. Amendment of the special tax consolidation regime

Dividend payments and capital gains crystallised between Spanish entities belonging to the same CIT Group would not be eliminated for consolidation purposes, in case the requirements envisaged in Article 21 of the Spanish CIT Law are fulfilled.

  1. Amendment of the special tax roll-over regime

In case the acquirer owns an interest of at least 5% in the capital of the transferor, only the 95% transferring company's capital gain would benefit from the Spanish domestic participation exemption, provided that the transferring company is a Spanish CIT payer.

  1. Amendment of the tax transparency regime

The general and transitional tax transparency regimes would be modified, so that 5% of the dividends or stakes in profits should be included in the taxable base in the part which corresponds to the positive income which has been included in the taxable base.

Likewise, the acquisition value of the shares in a Controlled Foreign Companies (CFCs) would be increased in an amount equal to 95% of the profits which have not been effectively distributed to its shareholders, but attributed to them as an income derived from their shares in the fiscal years from their acquisition and their disposal.

Minimum taxation

  1. Limitation to the CIT net tax quota

The Bill proposes that the net tax quota resulting from applying the tax credits and deductions that are provided for in the CIT regulations on the tax quota may not be negative.

  1. Minimum taxation

    A new provision would be included for the purpose of guaranteeing a minimum CIT taxation of (i) 15% of the taxable base for those CIT taxpayers with a net turnover amount (INCN) equal or greater than twenty million euros or those which are taxed under the tax consolidation regime, in the latter case regardless of its INCN; (ii) 10% for newly incorporated entities that are subject to a 15% tax rate; and (iii) 18% for credit entities and exploration, research and exploitation of deposits and underground storage of hydrocarbons whose general tax rate is 30%.

    Companies that are currently not subject to the minimum instalment payment (for example, Spanish REITs-SOCIMIs) would not subject to minimum taxation, except for private equity entities that would not be exempt from the minimum tax on non-exempt income.

    To apply said minimum taxation: (i) the tax quota would be reduced in the amount of the applicable tax credits, in such a way that if it results in an amount lower than that calculated in accordance with the provisions above, this new amount is considered as the minimal net tax quota; (ii) tax credits for double taxation would be applied, considering the limits that are applicable in each case; (iii) the rest of the tax credits, could only be applied up to the amount of the minimum net tax quota. The amounts not deducted may be deducted in the following tax periods, as appropriate.

    CIMIs) would not subject to minimum taxation, except for private equity entities that would not be exempt from the minimum tax on non-exempt income.

    To apply said minimum taxation: (i) the tax quota would be reduced in the amount of the applicable tax credits, in such a way that if it results in an amount lower than that calculated in accordance with the provisions above, this new amount is considered as the minimal net tax quota; (ii) tax credits for double taxation would be applied, considering the limits that are applicable in each case; (iii) the rest of the tax credits, could only be applied up to the amount of the minimum net tax quota. The amounts not deducted may be deducted in the following tax periods, as appropriate.

  2. Amendment regarding the credit of withholdings, payment on account and instalment payments

    The Spanish Tax Administration would reimburse the excess of (i) withholdings; (ii) payment on account; and (iii) instalment payments; when said amounts exceed the amount of the net tax quota or, if applicable, of the minimum net tax quota.

    mendment regarding the credit of withholdings, payment on account and instalment payments

    The Spanish Tax Administration would reimburse the excess of (i) withholdings; (ii) payment on account; and (iii) instalment payments; when said amounts exceed the amount of the net tax quota or, if applicable, of the minimum net tax quota.

Amendment of the reduced tax rate

A reduced tax rate of 23% would be established for those entities whose INCN in the immediately preceding tax period is less than one million euros, not applicable to those entities that may have the status of an asset holding entity.

Likewise, entities which qualify to apply a reduced tax rate of 23% and the limitations on depreciation for the years 2013 and 2014 have been applicable, would be entitled to the deduction, in the tax quota, of 7% of the amounts that are included in the tax base derived from such depreciation not deducted corresponding to the net increase in value resulting from such update.

In the same way, entities to which the reduced tax of 23% would be applied and would have accepted the updating of balance sheets, would be entitled to the deduction, in the tax quota, of 7% of the amounts that integrate in the impossible base derived from the amortisation corresponding to the net increase of the value resulting from that update.

Amendments concerning instalment payments

For the calculation of the instalment payments, the percentage applicable to the base would be unified, and would be the one resulting from multiplying the tax rate rounded by excess by nineteen twentieths. In this way, there would be no longer a different regime applicable for those entities that have an INCN between 6 and 10 million euros.

The percentage of the minimum instalment payment would increase to 24% and to 29% in the case of credit institutions.

Tax credit for the promotion of gender equality

It is proposed to include a tax credit for the promotion of gender equality: the entities that increase the number of women on its Board of Directors until they comply with the provisions of article 75 and the first additional provision of Organic Law 3/2007, of 22 March, for effective equality of women and men, might deduct from the tax quota of the corresponding the tax period in which this increase may occur, 10% of the salaries paid to such directors.

Amendment of the Spanish REITs’regime ("SOCIMIs")

  1. New special tax rate

A new special tax rate of 15% would be introduced on the profits obtained and not distributed in the same tax period. Said lien would be considered as a CIT tax quota.

With respect to the subsequent distribution of said undistributed profits subject to the new tax rate (15%), the special tax rate of 19%, when applicable, will be reduced to 4.75%.

  1. Taxation of the shareholders of the Spanish REITs that are CIT taxpayers or Non-Resident Income Tax (NRIT) taxpayers with a permanent establishment

The exemption provided in article 21 of the CIT Law would be applied on 50% (or 40% if the taxpayer is taxed at 30% tax rate) of the amount of the dividend payments distributed to which the new special tax rate has been applied.

The foregoing sould also apply in the case of transfer of the shares of said entity by CIT taxpayers or NRIT taxpayers with a permanent establishment, in relation to the increase in the available reserves resulting from undistributed profits during the holding period of the participation in which has been applied the new special tax rate.

Hardening of the verification measures by the Spanish Tax Administration to the SICAVs

The Spanish tax administration would be granted with the authority to verify, for tax purposes only, if Spanish collective investment entities (SICAVs) comply with the requirements regarding the minimum number of shareholders required (currently 100).

Non-Residents Income Tax

  1. Limitation to net tax quota

In relation to the income obtained through a permanent establishment, the Bill proposes that the net tax quota could not be negative as a result of the application of benefits and tax credits.

  1. Minimum taxation

    The same minimum taxation would be established as the CIT.

Wealth Tax (WT)

  1. WT tax rates

A new tranche would be introduced regarding the WT rates so that the applicable tax rate is increased by one point for the net taxable bases exceeding 10,695,996.06 euros (that is, 3.5%).

  1. Withdrawal of the general WT exemption

It is proposed that the general WT exemption would be finally repealed.

Value Added Tax (VAT)

The reduced tax rate of (i) 4% should apply to certain basic feminine hygiene products and to digital downloads and subscriptions of books, newspapers and magazines; and, (ii) 10% shall apply to veterinary assistance services, condoms and other non-medicinal contraceptives.

Real Estate Transfer Tax and Stamp Duty

The amendment of the tax rates applicable to the transfer and reinstate noble titles, increasing the tax quota of the same.

Other relevant aspects

The approval of new tax figures such as the Tax on Financial Transactions, or the Tax on Certain Digital Services, as well as the approval of a Law to reinforce the fight against tax fraud, will follow their corresponding parliamentary approval procedures, although the Budgets contain the forecast of income derived from said figures for the year 2019.

Finally, given the political uncertainty, it will be necessary to carry out a detailed follow-up of the proposed amendments and the final text of the law, in the event that it is finally approved.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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