Tax Bulletin June 2012

Royal Decree-Law 12/2012, of March 30, 2012, gave taxpayers the chance to make voluntary disclosures of assets or rights that were not reported for personal income tax, corporate income tax and nonresident income tax purposes, by filing a special tax return. It was later amended by Royal Decree-Law 19/2012, of May 25, 2012, in order to (a) allow taxpayers to report assets or rights that had been partially reported, (b) determine the effects of a future transfer of the disclosed assets and rights, and (iii) include cases where the beneficial owner of these assets or rights is not the same as the legal owner. Lastly, Order HAP/1182/2012, of May 31, 2012, approved Form 750 on which to file the special tax return, clarified some of the doubts created by the new legislation and added further changes such as the chance to make voluntary disclosures of cash.

The key features of the special return were discussed in our Tax News Bulletin 4/2012.
To recap, basically this legislation allows taxpayers to report assets and rights acquired in whole or in part with unreported income, by paying 10% of the acquisition cost of those assets or rights. In the case of bank accounts, the taxpayer may report the full balance of the account at December 31, 2010 (or at the taxpayer’s fiscal year-end date) or the balance on an earlier date if higher provided that the difference between the two balances has not been reinvested in another asset or right included on the return. Lastly, in the case of cash, the taxable amount will be the amount placed, before filing the return, in a bank account in Spain, in the European Union or in the European Economic Area subject to the satisfaction of certain requirements.

The return must be filed by the legal owner of the assets or rights. However, if the legal owner is not resident in Spain and is not the same as the beneficial owner, the beneficial owner may file the return on condition that it becomes the legal owner before December 31, 2013.

The assets or rights to be reported must have been acquired before December 31, 2010, unless the tax year is not the same as the calendar year, in which case they must have been acquired before the end of the last tax period for which the filing deadline ended before March 31, 2012 (cash will be deemed to be acquired before these dates if the taxpayer so states on the return and places the cash in an account, as described above). However, assets or rights transferred before these dates cannot be reported where the proceeds obtained from them have been used to acquire other assets or rights that are being reported using this procedure.

By filing the return, income not reported the purposes of the taxes indicated (not for the purposes of other taxes such as wealth tax) is deemed to have been disclosed to the extent of the sum reported for the assets and rights included on the return. These are the basic ingredients of the so-called “tax amnesty.” Looking forward, the array of cases that could spring up in this respect will undoubtedly trigger a host of new practical issues which will need to be resolved with as much legal certainty as possible.

CONTENTS

1. JUDGMENTS

1.1 Corporate income tax. The double taxation tax credit is applicable where the taxpayer makes the required efforts to evidence that the former shareholders were taxed (Supreme Court. January 12, 2012)
1.2 Nonresident income tax. Rules for applying the anti-abuse clause to the dividend exemption in the parent-subsidiary relationship (Supreme Court. Judgments of March 22, 2012 and April 4, 2012)
1.3 Inspection proceeding. The tax authorities must have proof of the existence of a specific simulated translation as theoretical considerations are not sufficient (National Appellate Court. Judgment of March 26, 2012)
1.4 Inspection proceeding. The tax authorities cannot link expenses to a certain sector of business for VAT purposes simply on the basis of assumptions (National Appellate Court. Judgment of March 27, 2012)
1.5 Tax on erection and installation projects and construction work (“ICIO”). Amounts of the tax paid upfront must be refunded if the taxable event does not take place (Andalucía High Court. Judgment of December 19, 2011)
1.6 Penalty proceeding. Failure to withhold cannot be penalized if no tax was due (National Appellate Court. Judgment of May 3, 2012)
1.7 Criminal proceeding. The commencement of criminal proceedings in relation to a tax does not stay the time periods and proceedings commenced in relation to other taxes (National Appellate Court. Judgment of March 1, 2012)

2. DECISIONS AND RULINGS

2.1 Corporate income tax. The special tax treatment for enterprises of a reduced size does not apply where the enterprise does not carry on a business activity (Central Economic-Administrative Tribunal. Decision of May 30, 2012)
2.2 Corporate income tax. The exemption to avoid international double taxation cannot be applied to Brazilian juros (TEAC. Decision of April 26, 2012)
2.3 Corporate income tax. Provision recorded for tax indemnity clause is deductible (Directorate-General of Taxes. Ruling V0846-12, of April 23)
2.4 Corporate income tax. Accelerated depreciation in the case of concession-holders that follow the financial model (Directorate-General of Taxes. Ruling V0690-12, of April 3, 2012)
2.5 Personal income tax. Means of proof other than a certificate of tax residence may be used to evidence tax residence in another state (TEAC. Decision of December 20, 2010)
2.6 Nonresident income tax. Where capital repayments are higher than acquisition cost, the difference must be treated as a dividend (Directorate-General of Taxes. Rulings V0837-12 and 0838-12, of April 23, 2012)
2.7 Nonresident income tax. Products sold in Spain through a commission agent acting in his own name can be treated as sold through a permanent establishment (TEAC. Decision of March 15, 2012)
2.8 Nonresident income tax. Special corporate income tax treatment may be applied for nonresident income tax purposes (Directorate-General of Taxes. Ruling V0714-12, of April 9, 2012)
2.9 Transfer and stamp tax. Where a unilateral mortgage is arranged in favor of the Tax Agency, the taxpayer is the tax authorities (Directorate-General of Taxes. Ruling V0773-12, of April 12, 2012)
2.10 Review proceeding. Notice declaring modification to vatable amount is late is appealable, as it affects the tax position of the VAT payer (TEAC. Decision of April 24, 2012)

3. LEGISLATION

3.1 Payment period for economic activities tax for fiscal year 2012
3.2 Special levy on foreign-source dividends and gains. Form 250
3.3 Special tax return. Form 750
3.4 Royal Decree-Law 19/2012
3.5 Corporate income tax and nonresident income tax return forms approved

4. OTHERS

4.1 Financial transactions tax
4.2 Spain and the United States initial new protocol to tax treaty