Tax Bulletin July 2013

07 / 30 / 2013

Download Tax Bulletin July 2013

The Commission’s decision to initiate the formal state aid proceeding relating to what is known as the “Spanish tax lease” was published on September 21, 2011.

The tax lease raised doubts at the Commission, basically because of the combination of the early and accelerated depreciation of vessels (typical of the finance lease regime) and the tonnage regime, which between them made the capital gains on sales of vessels practically tax exempt.

The final decision on the Spanish tax lease was adopted on July 17, 2013, and although the wording of the decision has yet to be published, the Commission’s press release reports that the Spanish tax lease is illegal and incompatible state aid, of which the beneficiaries are the EIGs (involved in the lease and sale of the vessels) and the shareholders and investors that invested through the EIGs. Accordingly, the aid granted or authorized after April 30, 2007 (the date on which the final decision on the French EIG regime was adopted) must be recovered.

Lastly, readers are reminded that as a consequence of the initiation of the formal state aid proceeding, the tax lease regime was repealed and new regulations were adopted, which were notified to the Commission and approved by it as compatible with state aid legislation on November 20, 2012. The new regime was introduced by Law 16/2012 of December 27, 2012.

1. JUDGMENTS

1.1 Nonresident income tax.- In order to receive a refund of withholding taxes paid incorrectly, the taxpayer need not prove that those taxes were paid over to the tax
authorities by the withholding agent (Madrid High Court. Judgment of February 20, 2013)
1.2 Value added tax.- A partial spin-off is not subject to VAT (Supreme Court. Judgment of June 19, 2013)
1.3 Tax collection procedure.- Determination of late-payment interest in partial assessments (Supreme Court. Judgment of June 6, 2013)

2. DECISIONS AND RULINGS

2.1 Corporate income tax.- Tax treatment of conversion of loans to equity in a parent-subsidiary relationship (Directorate-General of Taxes. Ruling V2220-13 of July 5, 2013)
2.2 Corporate income tax.- Restrictions on deduction of financial goodwill arising from intragroup acquisitions of shares (Central Economic-Administrative Tribunal. Decision of May 28, 2013)
2.3 Corporate income tax.- In order to apply the reinvestment tax credit, the transferred elements must be recognized as noncurrent assets, including noncurrent financial assets (Central Economic-Administrative Tribunal. Decision of May 28, 2013)
2.4 Corporate income tax / Inspection proceeding.- If a company incorrectly elected to move from reinvestment deferral relief to the reinvestment tax credit system, a tax adjustment should return the taxpayer to the deferral system (Central Economic-Administrative Tribunal. Decision of May 28, 2013)
2.5 Corporate income tax.– Limit on deduction of depreciation in 2013 and 2014 (Directorate-General of Taxes. Ruling V1713-13 of May 27, 2013)
2.6 Corporate income tax.– Correction of errors in valuation of inventories (Directorate-General of Taxes. Ruling V1590-13 of May 14, 2013)
2.7 Corporate income tax and VAT.– Tax treatment of assumption of a charge on an asset after its acquisition and of the related damages received (Directorate-General of Taxes. Ruling V1589-13 of May 14, 2013)
2.8 Personal income tax.- Mandatory attribution for tax purposes of group insurance contributions: interpretational guidelines (Directorate-General of Taxes. Ruling V2083-13, of June 21, 2013)
2.9 Personal income tax.- Leasing of real estate as an economic activity (Central Economic-Administrative Tribunal. Decision of May 28, 2013)
2.10 Value added tax.- Change in position regarding the definition of independent economic unit (Directorate-General of Taxes. Ruling V1693-12, of May 22, 2013)
2.11 Transfer and stamp tax.- The exemption from ad valorem stamp tax on deeds of novation and amendment applies to mortgage credit facilities (Central Economic-Administrative Tribunal. Decision of May 16, 2013)
2.12 Collection procedure.- The execution of fraudulent prenuptial agreements is a case that justifies enforcement of secondary liability against the other spouse (Central Economic-Administrative Tribunal. Decision of May 8, 2013)
2.13 Judgment enforcement proceeding.- The statute of limitations period is not tolled where the enforcement proceeding lasts longer than six months (Supreme Court. Judgment of June 12, 2013)