More tax changes for 2013 in Spain

More tax changes for 2013
The economic situation facing the country requires more tax changes, and that the measures introduced by the various standards that have been approved throughout the year, not enough to achieve the deficit targets set by the Government. That is why the tax measures contained in the recently enacted measures to combat tax evasion, add as many tax measures that the Government intends to adopt
This is the bill by adopting various taxation measures aimed at consolidating public finances and boost economic activity, which makes changes affecting the major figures of our tax system.

In the field of Income Tax of Individuals, various measures are taken. First, it eliminates the deduction for investment in residence from January 1, 2013, establishing a transitional regime which allows the deduction continue practicing all those taxpayers who acquired their property before December 31, 2012. Second, they are subject to income tax through a special 20% tax winnings from lotteries in the State, Autonomous Regions, National Organization of Spanish Blind, Spanish Red Cross and similar organizations of European character, which were previously exempt. However, awards are exempt sums of up to 2,500 euros.
Furthermore, in order to penalize tax speculative movements, is expected to change in the capital gains tax, so that the profits generated in less than one year will be added to the general tax base taxed at a corresponding .
It also modifies the rule for calculating the payment in kind arising from the transfer of housing to employees, when it is not owned by the company. In this case, the payment in kind will be measured by the amount of the rental cost borne by the employer. In principle, this measure is provided in the initial text of the Bill to be implemented after 2013, however, is likely to be delayed until 2014 incorporation, because the amendment submitted by the PP during the passage through Congress .

In the area of ​​income tax, temporarily, partially limited to large companies, the tax-deductible depreciation corresponding to the tax periods commenced within the years 2013 and 2014, and extending to the year 2013, the application of a reduced rate for maintenance or job creation by small firms.

In addition, because the positive effects that can result in business, by encouraging both domestic financing and improved access to capital markets, provides the option for the taxpayers of IS, income tax taxpayers engaged in economic activities IRNR and taxpayers operating in Spanish territory through a permanent establishment, to conduct a revaluation.
Extending for the financial year 2013 the term of Wealth Tax, temporarily restored, allowing help strengthen public revenues.

Regarding the Income Tax Non-Resident, and equivalently that indicated in relation to Income Tax for Individuals, provides a special tax on winnings from lotteries aforesaid.

Also introduced changes in the value added tax. Thus, it is expressly provided that delivery of goods is the award promoted by property assets to their communities of commoners, in proportion to their participation and provides that, in term operations, simply call the collection of one of the deadlines for change the tax base.
Finally, note that modifications are also within the scope of local taxes, to be affected mainly the IBI and IAE.
Keep in mind that the standard is still going through Parliament, so that the measures described above are subject to change until final approval. Among the many amendments to the bill, we want to highlight an amendment of the Popular Group which provides a kind of “amnesty cadastral” that will stabilize the property not registered in the Land Registry, and the changes are not registered on payment of a regularization fee of 60 euros per property.

Fiscal Current Affairs
On October 30 was published in the Official Gazette of Law 7/2012, of October 29, to amend the budget and tax legislation and adequacy of financial regulation for intensified action in the prevention and fight against fraud , which introduces important changes in tax matters. These changes highlight the following: Limit on cash payments. Obligation of information about goods and rights abroad. New cases of reverse charge for VAT Amendment of Article 108 of the Securities Market Act
On October 30 was published in the Official Gazette of Law 7/2012, of October 29, to amend the budget and tax legislation and adequacy of financial regulation for intensified action in the prevention and fight against fraud , which introduces important changes in tax matters. These changes highlight the following:
• Limitation of cash payments ..
• Obligation of information about goods and rights abroad
• New cases of reverse charge for VAT (Reviewed in another loop)
• Amendment of Article 108 of the Securities Market Act

Limitation of cash payments
On 30 October published Law 7/2012, of October 29, to amend the budget and tax legislation and adequacy of financial regulation for the intensification of the actions in preventing and combating fraud, introducing numerous important measures affecting the tax field. Are established and major changes in both taxes, direct and indirect, as in the Tax Code, among which stands out for its novelty to establish limitations on the use of means of payment in certain economic. The aim is to attack fraudulent behaviors are widespread, limiting the use of black money and hampering the use of false invoices.

SCOPE
Cash payments are limited to the following:
• Transactions in which one of the parties is a business or professional acting as such
• With an amount equal to or greater than € 2,500 (or equivalent in foreign currency)
That amount rises to € 15,000 (or its equivalent in foreign currency) if the debtor is an individual, not acting as an entrepreneur or professional, and you do not have to justify their tax residence in Spain.
Therefore fall outside the scope of payments and receipts made to banks and private operations.

CONCEPT OF CASH
The term cash means of payment as defined in Article 34.2 of Law 10/2010 of April 28, prevention of money laundering and terrorist financing.
“A.) Paper money and coins, foreign or domestic.
b.) The bearer checks, denominated in any currency.
c.) Any other physical means, including electronic, designed to be used as payment to the bearer. ”
For the purposes of the provisions of this Act, except payments and receipts made through credit institutions, with respect to transactions that can not be paid in cash, in the operations involved shall keep documentary evidence of payment for five years from the date hereof, to prove that was made through one of the means of payment other than cash. They will be required to provide these documents at the request of the tax.

Determining the amounts
To determine the amount of the restrained, must be added the amounts of all transactions or payments that may have split the delivery of goods or the provision of what the operation. That is, the limit does not apply for every payment that can split an operation, but by the amount of the operation itself.
It raises the question of how to operate the limit chain of operations, such as rent. In these cases, the absence of specific reference in the Act, we interpret that the limit of 2,500 euros per operation operates.

Penalty system
The offense for breach of such limitation will be classified as serious offenders being both the payer and the recipient of all or part of the amount in cash, in violation of limitations.
Sets the standard that will apply the penalty system contained in Law 30/1992 instead of the LGT, although its implementation is entrusted to the State Agency of Tax Administration. This is because although this measure is introduced in a rule of a mainly tax, not a tax measure but administrative in nature.
Both the payer and the recipient jointly and severally liable for the infringement committed and the penalty imposed. The AEAT may apply indiscriminately against any of them or against them, for the purpose of imposing the appropriate sanction:
• The base of the penalty is the amount paid in cash
• The sanction shall be fine proportional 25% of the basis of the penalty.

COMPATIBILITY WITH OTHER SANCTION OF SANCTIONS
The penalty arising from the infringement of the limits for cash, is not inconsistent with any other penalties that resulted from the commission of tax violations or breach of the duty of disclosure of payment methods established in Law 10/2010 , April 28, to prevent money laundering and terrorist financing, which basically involve the filing obligation of prior notification to:
or outputs or inputs in national territory means of payment in the amount not less than € 10,000, or its equivalent in foreign currency
Movements by country or means of payment in the amount not less than € 100,000, or its equivalent in foreign currency.

DISCLAIMER CHALLENGE
Either party to a transaction exempt from liability if within 3 months that had made the payment in cash, the AEAT complaint. In the complaint shall state: (i) the operation performed, (ii) the amount and (iii) the identity of the other party to.
This complaint only exonerates the first report since the report which is submitted after the other party to unformulated means that the simultaneous presentation of both intervening complaint responsibility not relieve any of them.
The Tax Office has enabled its website (www.aeat.es) an electronic procedure for handling complaints, referring exclusively to cash payments in excess of 2,500 euros.
PRESCRIPTION
Note that the limitation period is five years, and therefore above the current fiscal limitation period of four years.

Disclosure Obligations
Any authority or officer in the exercise of its powers becomes aware of any breach of the limit established in paragraph one, it shall promptly inform the AEAT bodies.

EFFECTIVE
Limiting cash payments shall enter into force 20 days after publication of the Law in the Official Gazette, namely on November 19 and will apply to payments made after that date, regardless concerned prior concerted operations.

Obligation of information about goods and rights abroad
As an additional measure to stabilize voluntary or “tax amnesty” approved by the government through the filing of the Special Tax Statement, is set in the Law 7/2012, of 29 October to amend the budget and tax legislation and adequacy of financial regulation for intensified action in the prevention of and fight against fraud, a new formal tax obligation, the obligation of information on assets and rights located abroad.

Scope of application
Shall be provided to the tax information on the following assets:
• Accounts opened located abroad in entities engaged in the banking or credit traffic they own or beneficiaries or those listed as authorized or otherwise to dispose bearing.
• any securities, assets, securities or rights representing the capital, equity or assets of all types of entities, or transfer to third parties of own capital, of which they own and which have been deposited or located abroad, well as life insurance or disability for which they are makers and temporary annuities or for their benefit as a result of the delivery of a capital in money, property or real estate, contract with entities established abroad.
• Real estate and property rights of ownership located abroad.

Scope of Application
The reporting obligation extends both to those who hold legal title to the property subject to the same, and those who are considered to be beneficial owners in accordance with paragraph 2 of art. 4 of Law 10/2010, of 28 April, prevention of money laundering and terrorist financing, according to which:
“For the purposes of this Act, the term beneficial owner:
a) The natural person on whose behalf it is intended to establish a business relationship or intervene in any transaction.
b) the natural person who ultimately owns or controls, directly or indirectly, a percentage higher than 25 percent of the capital or voting rights of a legal person, or by other means to exercise control, directly or indirect management of a legal person. An exception is a company listed on a regulated market in the European Union or third countries equivalent.
c) The person or persons who hold or exercise control of 25 percent or more of the property of a legal instrument or person who administers or distributes funds, or where the beneficiaries are yet to be determined, the class of persons benefit of which is set up or operates mainly legal person or arrangement. ”

VIOLATIONS AND PENALTIES
Failure to comply with this reporting requirement tax offense qualifies as very serious.

Infringement shall constitute the following conduct of the taxpayer:
• Do not submit the information return deadline
• Present information return incomplete, inaccurate or false data
• Present the document by means other than electronic, computer and communication when required to do so would by such means.
The Act establishes a specific penalty regime for both absolute breach of the obligation to the late submission of the statement:
a) Failure to report on accounts in banks located abroad:
• be sanctioned with fixed monetary fine of 5,000 euros per item or set of data on a single account should have been included in the statement or had been provided incomplete, inaccurate or false, with a minimum of 10,000 euros.
• If the return is filed out of time without prior request of the Administration, or by means other than electronic, computer and communication when obligations to do so by such means, the penalty shall be EUR 100 for each set of data or data relating on the same account, with a minimum of 1,500 euros.
b) Failure to report on securities, assets, securities, rights, insurance and annuities deposited, managed or obtained abroad:
• was fined 5,000 euros pecuniary fixed per item or set of data on each element individually considered by asset class, which should have been included in the statement or had been provided incomplete, inaccurate or false, with a minimum € 10,000.
• If the return is filed out of time without prior request of the Administration, or by means other than electronic, computer and communication when obligations to do so by such means, the penalty shall be EUR 100 for each set of data or data relating each element individually considered by asset class, with a minimum of 1,500 euros
c) Failure to report on real property and rights in immovable property situated abroad:
• be sanctioned with fixed monetary fine of 5,000 euros per item or set of data referring to the same real property or the same right on a property that had been included in the statement or had been provided incomplete, inaccurate or false, with a minimum of 10,000 euros.
• If the return is filed out of time without prior request of the Administration, or by means other than electronic, computer and communication when obligations to do so by such means, the penalty is $ 100 per item or set of data, referring to the same real property or the same right on immovable property, with a minimum of 1,500 euros
Violations and penalties regulated by this additional provision will be incompatible with those laid down in Articles 198 and 199 of this Act

INCOMPATIBILITY WITH OTHER SANCTION OF SANCTIONS
The system of offenses and penalties applicable to infringements of the obligation of information on assets and rights located abroad is incompatible with the offense not to submit self-assessments or statements on time without causing economic harm, for violating the obligation to communicate the tax residence or for violating the conditions of certain authorizations (Art. 198 of the LGT) and the offense to present self-assessments or declarations incorrectly without causing economic damage or answers to individualized information requirements (Section 199 of the LGT) .

Amendment of Article 108 of the Securities Market Act
It gives a new wording of Article 108 of Law 24/1988, of 28 July, on the Securities Market (hereinafter LMV) that has full effect for transfers of securities from October 31, 2012, radically changing the indirect taxation arrangements applying to transmissions in the secondary market for shares of companies with property, operations, according to the previous wording of this provision, were subject to mode Transfer Tax (“TPO”) of the Transfer Tax and Stamp (“ITPyAJD”) when certain objective conditions were met.
It simplifies therefore the wording of Article 108 of Law 24/1988 which happens to be an objective standard to measure fiscal circumvention possible transfers of securities, which are only a hedge of a transfer of property, by filing corporate figures.
The modification is motivated by the doubts and uncertainties posed by the previous wording of the precept. In this regard the Supreme Court had referred two questions to the Court of Justice of the European Union and the European Commission had issued an opinion on the possible discrepancies with Directive 2008/7/EC concerning indirect taxes on the raising of capital.
Among the highlights of the new version can be cited as discussed below.
• Through Rule 108 will be taxed only LMV transmissions made unlisted securities in secondary markets.
• Do not apply the provisions of paragraph 2 of Article 108 of the LMV to acquisitions made in the primary markets, ie operations which expands or acquires control of a company through the issue of new shares .
• Article 108 LMV longer configured as an objective standard, requiring that attend circumvention mood. Specifically required for application that had been intended to avoid paying the taxes that would have taxed the transfer of the property owned by the entities representing such securities.
• He collected three cases in which it is presumed, unless proven otherwise, that acts with the intention of circumvention which is basically when acquiring or increasing the control over a company whose major assets are properties located in Spain and that are not to business activities.
• When you get control of an entity whose assets are formed by at least 50% by property located in Spain that are not assigned to business or professional activities, or when, after obtaining such control, increase the share in it .
o When you gain control of an entity whose assets include securities which permit effective control of another entity whose assets are composed of at least 50% by property located in Spain that are not assigned to business or professional activities, or when, after obtaining such control, increase the share in it.
o When the values ​​transmitted are received by the contributions of property made in connection with the incorporation of companies or the expansion of its share capital, provided that such goods do not affect trade or business activities and that between the date of contribution transmission and had not passed within three years.
o However, the wording of the provision raises interpretative questions about the existence of mind Circumvention through the transfer of shares is transmitted an entire business assets which include buildings used it in the terms that collects Article 7.5 of the Consolidated Law on Transfer Tax and Stamp Duty.
• According to the new wording if concurs profit taxation avoidance by the transfer of the securities not be provided in any case, the form Transfer Tax (OPT) but is taxed according to the tax that would be subject as onerous transmissions of real estate, ie TPO or VAT.
• To this effect occurs adapting and 20.One.18 4.Cuatro articles of the Law on VAT for such operations may be subject to VAT.
• Therefore establishing the general exemption from levy VAT or stamp tax on the transfer of securities, excepcionando such exemptions when it is intended to avoid paying the taxes that would have taxed the transfer of the property owned by the entities those representing such securities, in which case, be taxed in the tax to which they are subject as onerous property transfers.

Premia de Mar, December 27, 2012

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