Author: DTY Asesores

Regimen sancionador cuentas anuales

PENALTY SYSTEM FORSEEN FOR FAILURE TO DEPOSIT THE ANNUAL ACCOUNTS

Articles 279 et seq. of the Capital Companies Law (LSC) regulate the Deposit and Publicity of the annual accounts.

In particular, article 283 establishes the penalty system foreseen in case of non-compliance with the obligation, by companies, to deposit annual accounts, with penalties reaching up 60,000 euros in the case of SMEs..

There is a general practice by many companies that have ceased to operate for various reasons (corporate disputes, marriages that separate as part of a company, etc.) of not presenting their balance sheets as established by the LSC, despite the possible sanctions of the aforementioned article 283 LSC.

RD 2/2021 of January 12, 2021, Regulations for the development of Act 22/2015 on Auditing of Accounts in its eleventh Additional Provision, streamlines and strengthens the sanctioning regime contained in article 283 LSC in order to "clean the censuses ”of companies that without having commercial activity or traffic do not opt for dissolution and liquidation

Given the importance of sanctions, it is advisable to comply with the aforementioned obligation,thus avoiding incurring in any type of punishable behavior.

Deductibility of interest on late payment interest for Corporate Income Tax purposes

Recently, the Supreme Court through its judgment of February 8, 2021, appeal No. 3071/2019, resolves that for the purposes of Corporation Tax, late payment interest is considered a tax deductible expense, contrary to what is maintained by the Tax Administration.

Since late payment interest is intended to compensate for a delay in the fulfillment of an obligation to give, not admitting its deductibility requires a legal provision to that effect.

Likewise, late payment interest is correlated with income, therefore, they must be deductible.

Judgment:

VAT refund to entrepreneurs established in the United Kingdom of Great Britain and Northern Ireland

On January 5, 2021, a Resolution of the General Directorate of Taxes, of January 4, was published on the refund of Value Added Tax to entrepreneurs or professionals established in the territories of the United Kingdom of Great Britain and Northern Ireland . The recognition of reciprocity is not absolute. The following VAT will not be subject to refund in Spain:

  1. VAT borne by goods and services acquired that do not affect business or professional activity.
  2. VAT borne by goods and services that are intended for resale.
  3. VAT borne by goods and services that refer to entertainment or services of a recreational nature.
  4. Fees borne by the acquisition of a motor vehicle.
  5. 50 percent of the VAT borne by the rental or financial leasing of a motor vehicle.

Since entrepreneurs established in Northern Ireland enjoy the application of a specific protocol and, therefore, this territory is considered to be part of the Community in relation to deliveries, intra-Community acquisitions and imports of goods, they may continue requesting the refund of the VAT payments borne by these operations in accordance with the provisions of article 119 of the law. Thus, only the limitations mentioned above in relation to the provision of services will apply to them.

Resolution: BOE.es – Documento BOE-A-2021-129

Limitation to 95% of the exemption foreseen in article 21 of the LIS.

By means of Law 11/2020, of December 30, on General State Budgets for the year 2021, a series of modifications have been introduced in the Corporate Income TaxLaw, mainly affecting the treatment that article 21 of the aforementioned Law gave the Exemption on dividends and income derived from the transfer of shares representing the own funds of resident and non-resident entities in Spanish territory.

Effective January 1, the amount of dividends and profit shares and income derived from the transfer of shares will be reduced by 5% as management expenses, for the purposes of applying the measures designed to avoid double taxation, this means that in the end the amount of dividends and income derived from the transfer of shares will be reduced by 5% in respect of non-deductible management expenses; which reduces the effective exemption to 95%.

It should be noted that entities whose net amount of turnover during the immediately preceding fiscal year is below 40 million euros will not be affected, temporary, by this limitation, where dividends are distributed, provided that they meet a series of requirements, being the more relevant, in our opinion, that the investee company must have been incorporated after January 1, 2021 and, since its constitution, it must be fully owned, directly or indirectly, by the recipient of the dividends.

This measure, although it is not contrary to European regulations, does involve double taxation that will have to end up being assumed by the entity receiving the dividend or the transferor of the shares.

Default interest and its taxation in the Personal Income Tax according to the Supreme Court

In the recent decision of the Supreme Court (hereinafter, TS) of December 3, 2020, R. CASACION núm.: 7763/2019 establishes that late payment interest from a refund of unduly paid taxes should not be taxed as it is considered as not subject to the Personal Income Tax (hereinafter, IRPF). It is noteworthy that said sentence has a private vote that considers that this should be taxed as a capital gain.

In the recent decision of the Supreme Court (hereinafter, TS) of December 3, 2020, R. CASACION núm.: 7763/2019 establishes that late payment interest from a refund of unduly paid taxes should not be taxed as it is considered as not subject to the Personal Income Tax (hereinafter, IRPF). It is noteworthy that said sentence has a private vote that considers that this should be taxed as a capital gain.

Es probable que todo lo anterior pueda ser también de aplicación en el supuesto de  devoluciones derivadas del Impuesto sobre Sociedades y del IRNR, por ejemplo, las basadas en vulneración del Derecho de la UE y de la Constitución. En caso de que se hubiera tributado por ello, sería recomendable estudiar la posibilidad de instar la rectificación de las autoliquidaciones de IRPF, IS o IRNR, en su caso, correspondientes dentro del plazo de prescripción.

Sentencia: Supreme Court Decision:

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