Spain Jose Ramon Vizcaino Fernandez de Casadevante Diego Carrera Dávila [email protected] [email protected] 166 • dentons.com 1.0 OVERVIEW withholding tax rate would apply to From a direct taxation viewpoint Spanish taxes can be levied non-residents who obtain Spanish there are other applicable taxes, at a national (state), regional source dividends, interest payments, such as local property tax and (autonomous region) or local (town rents, royalties or management fees business activity tax, and others that hall or municipal authorities) level. (among other kinds of income). The only apply to individuals, such as Additionally, Spanish taxes can be rate of withholding tax depends the inheritance and gift tax and the broken down into three groups: on the nature of the income (for wealth tax. instance, as a general rule, the 19% taxes, duties and special levies. In Regarding indirect taxation, value- any case, and as a general overview, applies to interest and dividends regardless of the residence of added tax (VAT) and transfer tax are duties and special levies trigger in applicable in Spain. VAT is regulated return of a public service or benefit, the non-resident) and on the tax residence of the non-resident (for according to the EU standards such as the parking rate, garbage under the VAT Directive. VAT is not rate or court fee. instance, the 19% applies to residents of the European Union (EU) or the applicable in the Canary Islands, Spain imposes corporate and European Economic Area (EEA), while Ceuta or Melilla, which are not personal income tax on its residents, the 24% withholding rate applies considered Spanish territories from including permanent establishments to other non-residents of the EU or a VAT perspective. Instead, these in Spain of non-resident companies, the EEA). The Spanish payer of such regions apply their specific sales on a worldwide basis for any type amounts is liable for withholding this taxes. Most aspects of transfer tax, of income (e.g., interest, dividends, tax on behalf of the non-resident including rates, deductions and lease income, capital gains, etc.). recipient before the Spanish tax formalities when filing tax returns, Both corporate income tax (CIT) and authorities. However, Spain has are determined by regional tax laws. personal income tax (PIT) are state- one of the most extensive double- Stamp duties and custom duties on level taxes, although Spanish regions taxation treaty networks in the imports are among the other forms can regulate certain aspects of the world, which reduces or eliminates of indirect taxation. PIT, such as rates and deductions. the Spanish withholding tax rate on such types of income. Certain Spain has signed the Multilateral Non-residents not acting through a payments within the EU, such as Convention to Implement Tax Treaty permanent establishment can also interest, dividends and capital gains, Related Measures to Prevent Base be subject to taxation in Spain under are not subject to taxation if certain Erosion and Profit Shifting (MLI), but the Non-Residents Income Tax (NRIT) requirements are met. the Spanish parliament has not yet Act. In general terms, a 19% / 24% completed the ratification process. dentons.com • 167 2.0 LEGAL SYSTEM management is in Spain. Special • General partnerships are private rules apply if the company is entities (sociedad colectiva) with In Spain, the autonomous regions established in a tax haven but has legal personhood and unlimited and local territories operate under assets and/or rights in Spain. Below joint liability a civil law legal system established are the main aspects of Spanish • Simple limited partnerships by the Spanish Constitution. Taxes business vehicles, alongside with (sociedad comanditaria) have are also governed by international some introductory tax inputs. treaties (including double-taxation legal personhood and comprise treaties signed by Spain or the 4.1 Public limited companies two types of partners: general EU), international regulations, the partners with unlimited liability, In public limited companies (in Spanish General Tax Act and other and limited partners whose Spanish, Sociedad Anónima applicable legislation. liability is limited by their or S.A.), shareholder liability is contributed amount 3.0 TAXATION AUTHORITIES generally limited to the amount • Limited shareholders the shareholder contributed The tax system in Spain is partnerships (sociedad to the company’s equity. This administered by the Agencia Estatal comanditaria por acciones) contribution is represented by the de Administración Tributaria (AEAT), have legal personhood and shares that qualify as negotiable which depends on the Spanish comprise two types of partners: securities, which may be listed on Treasury Ministry. general partners with unlimited the stock exchanges. The minimum liability, and limited partners Spanish regions have been capital to set up a Spanish S.A. whose liability is limited by their entrusted with the administration is €60,000, which must be fully contributed amount of certain taxes, along with the subscribed and at least 25% paid up regulation of certain aspects upon incorporation. 4.4 Foreign entities (with or (principally, rates and deductions). without a Spanish permanent 4.2 Private limited companies Municipal bodies administer certain establishment) local taxes and have the power Private limited companies (in A foreign company that carries to regulate their own municipal Spanish, Sociedad Limitada or on business in Spain, whether taxes, with certain limitations S.L.) are the most common type it acts through a permanent and, normally, within a framework of investment vehicle in Spain. establishment or not, is subject established by state law. Shareholder liability is generally to tax under the Non-Resident limited to the investment in the Income Tax (NRIT) Act in respect of 4.0 BUSINESS VEHICLES company’s equity. The minimum such income. A non-resident may either establish capital required to set up an S.L. is a Spanish business vehicle to €3,000, which must be subscribed If the foreign entity is resident carry on business in Spain or and fully paid upon incorporation. in an EU country or in a country operate directly, with or without a The capital is represented by units, that has a double-taxation treaty Spanish permanent establishment. an instrument that closely resembles pursuant to which the company In general, the incorporation the shares of an S.A, and which may claim treaty benefits, the of Spanish entities is exempt can also have a non-voting nature. entity would generally be subject from taxation. However, units may not be listed on to the rules of EU legislation (for stock exchanges. instance, an EU directive or an EU Additionally, it should be noted regulation) or the relevant treaty. that, according to the Corporate 4.3 Partnerships There are special rules when Income Tax Act, a company is There are three main types of the profits are earned through considered resident in Spain if it has partnerships in Spain, which are not a permanent establishment been incorporated under Spanish very common due to the unlimited situated in Spain. One of the most law, if the corporate address is in liability of the members: important special rules is that a Spain or if the place of effective foreign company would not be 168 • dentons.com allowed to claim double-taxation from Spanish 1% capital duty and general rule that interest payments treaty benefits if the activity is not subject to VAT or stamp duty). to an EU resident are exempt from performed in Spain through a However, when assets other than withholding taxation (whether or not permanent establishment. cash are contributed to a Spanish the lender is a third party). Particular company, it should be considered on attention should be given to anti- In this regard, a company that a case-by-case basis, because tax abuse tax provisions. operates through a Spanish could be triggered when contributing 5.2.2 Thin capitalization and permanent establishment (such as mortgaged assets to an entity. a branch) will be subject to taxation limitation on deductibility of interest expenses in a very similar way as a Spanish 5.1.2 Contributions without taking additional shares resident entity. In a nutshell, the Thin capitalization rules no rules applicable under the CIT Act Shareholders can make an equity longer apply in Spain, although would apply in order to determine contribution to an incorporated there are some restrictions on the NRIT liability of the permanent company without the issuance of the deductibility of interest establishment. However, additional shares. This is known as expenses for Spanish entities. some particularities should be “other shareholder contributions,” Interest deductibility is subject to considered, such as the limitation and can for instance be used to compliance with transfer pricing on certain expenses and valuation offset accounting losses. rules and earning stripping rules (i.e., of certain transactions. the 30% EBITDA limit). In general terms, these contributions For non-resident entities not are not subject to taxation and do Under earning stripping rules, acting through a permanent not have CIT implications, as they net interest expenses (i.e., excess establishment, the NRIT Act are not considered accounting financial expenses accrued over imposes a withholding tax of 19% income (relevant exceptions could interest income) generally are / 24% (although this rate may apply in case of debt contribution). capped at 30% of EBITDA (as vary on certain type of income) Distribution or return from this defined in the CIT Act). However, on all Spanish sourced incomes account should be carefully net interest expense is tax- paid to non-resident entities. In reviewed as it may have adverse deductible if it does not exceed general terms, these withholding tax consequences. €1 million per year (known as the taxes also apply to payments 5.1.3 Distributions of paid-up minimum allowance).