The Official State Gazette of 28 December 2022 published Law 38/2022, of 27 December, which creates the Temporary Solidarity Tax on Large Fortunes.
We inform you that Law 38/2022 of 27 December 2022 has created the temporary solidarity tax on large fortunes (hereinafter “IGF”). The approval of this tax has been strongly criticised, mainly due to the fact that it has dispensed with the coordination mechanisms provided for in the framework of the financing system of the Autonomous Communities.
It is configured as a complementary tax to the Wealth Tax, of a state nature, which cannot be transferred to the Autonomous Communities, in order to levy an additional tax on the wealth of individuals in excess of 3,000,000 euros.
The law also introduces other tax innovations. Thus, in the corporate income tax regime for tax groups, a time limit is established on the use by the group of the losses generated by its entities in the year itself, and significant new features are introduced in the deduction for investments in film productions, series and live shows. Finally, it is worth highlighting the amendment to the Wealth Tax regulations, by virtue of which non-resident taxpayers must pay tax in Spain on the holding of shares in entities with real estate located in Spain.
Territorial scope
The tax has a state character and is applicable throughout the Spanish territory, without prejudice to the foral regimes of the Economic Agreement and the Economic Agreement with the Basque Country and Navarre. In this respect, it is expressly established that this tax may not be transferred to the Autonomous Communities (“CCAA”).
Tax years concerned and accrual of the tax
The tax is set up on a temporary basis and, in principle, will apply exclusively for the years 2022 and 2023. However, the approved regulation urges the Government to assess, at the end of the period of validity, the results and to propose, where appropriate, its maintenance or abolition.
The accrual occurs on 31 December of each year and, therefore, on that date the amount of net assets must be verified, as well as compliance with the requirements and conditions for determining the tax base.
This means that the first accrual of the tax occurs on 31 December 2022, three days after the publication of the Law in the Official State Gazette.
Main aspects of its configuration
As indicated in the Explanatory Memorandum, the IGF coincides in its configuration with the IP in terms of its territorial scope, exemptions, taxable persons, taxable and net taxable bases, taxable income and tax rates, as well as in the limit of the total tax liability. The main difference lies in the taxable event, since only taxpayers with a net worth of more than €3,000,000 are taxed.
Taxable persons
Taxpayers are individuals resident in Spanish territory who have net assets in excess of €3,000,000 at the date of accrual of the tax. However, the rule establishes a minimum exemption of €700,000, so that its effective incidence, in general, will occur when their net assets, not exempt, are greater than €3,700,000.
Non-resident individuals and taxpayers who apply the impatriate regime provided for in article 93 of the Personal Income Tax Law with non-exempt net assets located in Spanish territory in excess of €3,000,000 are also taxable persons subject to the IGF. For these taxpayers, no exempt minimum will be applicable. In any case, the provisions of the double taxation treaties must be analysed to determine the specific impact that the IGF may have on their asset structure.
Taxpayers resident outside the European Union must designate, before the end of the tax return period, a representative, whether an individual or a legal entity, to represent them before the tax authorities. Resident taxpayers who leave Spain after the taxable event has occurred and go to a third country and before having filed the self-assessment tax return must also designate a representative, unless they return before the end of the statutory tax return period.
Exemptions
For these purposes, it should be borne in mind that the same exemptions are applicable to the IGF as are provided for in the Law on IP; the regulation of the IGF refers to the Law on IP in this matter. This provision is very relevant given that it will allow, to the extent that the requirements set out in the regulation are met, the exclusion from the tax base of the value of holdings in so-called family businesses, the value of certain art objects and antiques, of assets forming part of Spanish historical heritage and of the Autonomous Communities and the amount of the habitual residence up to a maximum amount of €300,000, among others.
Due to its importance, we believe it is advisable to analyse compliance with the requirements set out in Article 4.8.2 of the IP Law relating to the exemption for holdings in family businesses, as well as a due review of the allocation of their assets. To this end, the situation of cash and financial investments, investment plans and projects, the ownership of assets for personal use of the partners, the operational or patrimonial nature of the investee companies, the destination of the debts assumed, etc. must be reviewed, among others.
Scale of taxation
The scale of taxation of the IGF coincides with that provided for in the IP Law with the particularity that for the first 3,000,000 euros of net taxable income no taxation will be generated:
| Net base | Fee | Remaining Taxable income | Applicable type |
| – | – | – | – |
| Up to EUR | Euros | Up to EUR | Percentage |
| 0,00 | 0,00 | 3.000.000,00 | 0,00 |
| 3.000.000,00 | 0,00 | 2.347.998,03 | 1,7 |
| 5.347.998,03 | 39.915,97 | 5.347.998,03 | 2,1 |
| 10.695.996,06 | 152.223,93 | Onwards | 3,5 |
Limit on the total tax liability
The regulation also incorporates a maximum taxation limit on the full amount of the IGF in terms very similar to those foreseen in the IP.
To this end, it is established that the gross personal income tax liability, together with the gross personal income tax (“IRPF”) and IP, may not exceed 60% of the sum of the IRPF taxable bases. As in the case of IP, this limitation only benefits persons subject to personal liability, so that non-residents and impatriates will not apply any limit linked to the income they obtain during the financial year.
At this point it should be noted that the reference made in the regulation to apply the joint limit is the full amount of the IP and, therefore, the fact that in some Autonomous Regions a subsequent rebate has been approved that allows the amount to be paid in the IP to be reduced or reduced to zero will not be taken into account.
It is expressly stated that the rules on the limit of the full amount of the IP provided for in article 31 of the Law on IP shall be applicable; therefore, it can be understood that (i) the non-computation of the part of the savings taxable base of the IRPF derived from capital gains and losses derived from capital items more than one year old and the part of the full amount corresponding to that base shall be applicable, as well as (ii) the rule relating to capital items that cannot produce taxable income in the IRPF.
It is also stated that, in the event that this limit is applied, the reduction of the IGF tax liability must, in any event, respect a minimum taxation of 20% of said liability (i.e. a maximum reduction of the IGF tax liability of 80% is provided for).
Tax actually paid in the IP
In order to avoid situations of double taxation, it is also established that the taxpayer’s IP tax liability may be deducted from the IGF tax liability. This will mean that the incidence of the IGF will be unequal, given that it will depend on the tax liability that has been paid in accordance with the IP regulations applicable in the taxpayer’s Autonomous Community of residence.
- If the amount paid for the IP is equal to or greater than the amount of the IGF, no amount is payable for the new tax and there is no obligation to file a tax return for the IGF.
- If the IP tax liability is zero or less than the IGF, the difference between the two amounts is payable for the IGF.
The new tax must be self-assessed in the place, in the form and within the deadlines determined by the Ministry of Finance and Public Function. The approved text does not indicate the deadline for filing, but insofar as it is configured as a complementary tax to the IP, we understand that the most reasonable thing is that it should be filed within the same deadlines as the aforementioned tax.
Other tax measures
In addition, as mentioned above, the final provisions of the regulation introduce amendments that affect, among others, the areas of ISD, IP, IS and taxes. Thus:
➤ In relation to the payment of tax debts by means of the delivery of assets forming part of Spanish Heritage, Article 65 of Royal Decree 111/1986, of 10 January, is amended to adapt this provision to the existence of the new Temporary Solidarity Tax on Great Fortunes, so that the tax debt of this may also be paid by means of the delivery of assets forming part of Spanish Historical Heritage.
➤ In relation to Inheritance and Gift Tax, Article 34.4 of Law 29/1987 is amended to include the Autonomous Community of La Rioja as a territory in which the self-assessment system for this tax is compulsory.
➤With regard to Wealth Tax, paragraph one of Article 5 (taxable persons) of Law 19/1991 is amended (thus affecting the new solidarity tax), which clarifies that securities representing the participation in the equity of any type of entity, not traded on organised markets, at least 50% of whose assets are made up, directly or indirectly, of real estate located in Spanish territory, shall be considered to be located in Spanish territory. For the purpose of calculating the assets, the net book values of all the assets entered in the accounts shall be replaced by their respective market values as determined on the date on which the tax becomes chargeable. In the case of immovable property, the net book values shall be replaced by the values that should operate as the tax base for the tax in each case, in accordance with the provisions of Article 10 of this law (i.e. the highest of the following three values: the cadastral value, the value determined in accordance with the provisions of Article 10 of this law, the value determined in accordance with the provisions of Article 10 of this law, the highest of the following three values: The cadastral value, the value determined or verified by the Administration for the purposes of other taxes or the price, consideration or value of the acquisition). In this regard it should be remembered that the DGT in a recent consultation V1947/2022, of 13 September, has maintained that “Wealth Tax is not levied on the ownership of shares or holdings of companies not resident in Spain that are owned by individuals not resident in Spain, who should only pay the tax on the ownership of assets and rights located, which can be exercised or are to be fulfilled in Spanish territory”.
➤The following amendments are also introduced in the LIS in relation to corporate income tax:
- Deduction for investments in film productions, audiovisual series and live performing arts and music shows. Article 39 is amended, with effect for tax periods beginning on or after 1 January 2021. 7 so that the deduction for the taxpayer who participates in the financing of the production costs (not including, therefore, expenses for obtaining copies, advertising and promotion) of a Spanish production of feature films, short films, fiction, animation or documentary audiovisual series, or live performing arts and musical shows can be applied when the amounts contributed to finance the aforementioned costs are contributed at any stage of the production, before or after the producer incurs the production costs. It is also provided that the deduction does not apply where the taxpayer participating in the financing is related to the taxpayer generating the right to the deduction. It is also clarified that the taxpayer participating in the financing will have a joint limit for the application of the deduction of 25 per cent. However, this limit will be raised to 50 per cent when the amount of the deduction provided for in paragraphs 1 and 3 of article 36 of this law, which corresponds to the taxpayer participating in the financing, is equal to or greater than 25 per cent of his gross tax liability less deductions to avoid international double taxation and allowances. Article 36.1 and 2 is also amended, effective for tax periods beginning on or after 1 January 2023, to increase the limits of deductions relating to film production and Spanish and foreign audiovisual series (the amount of this deduction may not exceed 20 million euros -previously 10 million- and in the case of audiovisual series, the deduction will be determined per episode and the limit will be 10 million euros for each episode produced).
- Limitation on offsetting losses in 2023 in the tax consolidation regime. A measure is established for the 2023 tax period consisting of the non-inclusion of 50 per cent of the individual tax losses of the entities making up a group taxed under the tax consolidation regime in the determination of the consolidated tax base of said group. The aforementioned percentage not included in 2023 may be offset against the taxable profit of the tax group in subsequent years, so that the measure has a tax anticipation effect, but does not entail a change in the taxation of the tax group.
➤ Finally, in the area of fees, the fees of the revised text of the Law on Guarantees and Rational Use of Medicines and Medical Devices (Royal Legislative Decree 1/2015) contained in its Title XI are re-regulated in order to update the regulatory framework governing the fees collected by the Spanish Agency for Medicines and Medical Devices, so that this regulatory framework is adjusted to the current reality. Thus, the system for financing the activities and services provided under public law in the field of medicines and health products is updated, by updating the structure and amount of the existing fees, creating new fees adapted to the current situation and eliminating those corresponding to activities that are no longer carried out. This new regulation comes into force on 28 June 2023.
In addition, the fees applicable to the Canary Islands Special Zone (ZEC) entities regulated in Article 50 of Law 19/1994, of 6 July 1994, amending the Canary Islands Economic and Fiscal Regime, have also been modified. This modification was motivated by the configuration of the registration fee, which entailed numerous problems arising from the way in which it fitted in with the procedure for registration in the said ZEC. To this end, this amendment replaces the taxable event and configuration of the fee, bringing it back to the application for authorisation. In addition, the amount of the authorisation fee has been increased.
You can contact our office for any questions or clarification you may have in this regard.
