Tax Newsletter - February 2023

If the bylaws do not provide for directors’ compensation, their withholding tax must be paid over in Navarra or to the authorities in the general tax area under the rules on salary income rather than those relating to directors’ compensation

The Supreme Court has held that, if a director receives compensation for services not attached to their director status (even if powers associated with a chief executive officer are held), besides which the bylaws do not provide for directors’ compensation, the withholdings from those compensation payments must be paid over in the general tax area or in Navarra depending on where the work is performed. In other words, in these cases, the rule set out for the payment of withholdings from the compensation of directors does not apply (the company’s tax domicile).

The withholding base amount for royalty payments to European Union residents must be reduced by expenses related to the business

The Nonresident Income Tax Law states that the taxable amount in relation to income obtained without a permanent establishment by EU resident companies must be calculated by reference to the expenses directly related to the income obtained in Spain and which has a direct and inextricable link to the activity conducted in Spain. However, the payer of the income must make withholdings on the gross amount. The National Appellate Court has held that Spanish lawmakers should allow the type of expenses described above to be subtracted from withholding tax base amount for payments to EU residents.

The tax authorities may only publish information on individuals or legal entities with final tax debts

The Supreme Court concluded that the debtor list cannot include debtors in respect of tax debts or penalties which are not final. Nor can that list include debts in respect of assessments related to an offense, unless there is a criminal judgment with a conviction for an offense against the public purse.

An order initiating enforced collection proceedings cannot be made in relation to pre-insolvency order debts, even if the conditions for issuing them were satisfied before the insolvency order

TEAC has found that both the LGT and the insolvency legislation must be interpreted to mean that an order initiating enforced collection proceedings cannot be issued in relation to pre-insolvency order debts, even if the necessary conditions for issuing that order had arisen before the insolvency order.

The monetization of R&D&I and motion picture production tax credits is compatible with the minimum tax rate

The DGT has confirmed that the monetization of R&D&I and motion picture production tax credits may be requested even if the entity is subject to the 15% minimum tax rate rules.

Approval of the Annual Tax and Customs Control Plan for 2023

Among other activities, it charts that joint audits and mutual agreement procedures will be fomented, use of tax losses at tax groups will be monitored, changes of residence to other territories will be reviewed (outside Spain or to autonomous communities other than where the actual residence is located); and preventive control measures in relation to the Intra-Community Operators Register will be carried out.

For further details on this month’s judgments, decisions, resolutions and legislation, SEE THE WHOLE NEWSLETTER HERE.