Transfer tax on the sale of Spanish real estate companies - Internat...
Cover Story Features Comment News Deals Directory Australia Belgium Brazil Canada Central America and Dominican Republic China European Union Germany India Italy Luxembourg Mexico Norway Russia South Korea Spain Taiwan US Inbound US Outbound
http://www.internationaltaxreview.com/?Page=10&PUBID=35&...
May 2007 -
<< Issue Index
Print this story Garrigues
Spain: Transfer tax on the sale of Spanish real estate companies Garrigues
Indirect taxes levied on the transfer of real estate can sometimes make a real difference on the profitability of the transaction. In Spain, transfers of real estate may be subject to VAT in the case of entrepreneurial transactions (which is normally recoverable) or to non-recoverable transfer tax (6% or 7% depending on the Autonomous Community where the real estate is located) in the case of non-entrepreneurial transactions or where the transaction is VAT exempt (such as second transfers of real estate or the sale of rural land). Under certain circumstances, the VAT exemption can be waived so that recoverable VAT applies instead of unrecoverable transfer tax. A sale of shares of a company is exempt from any indirect taxes except where at least 50% of its assets consist of real estate located in Spain and the purchaser acquires control over said company; in this case, transfer tax is to be paid by the purchaser of the shares. This anti-avoidance provision, included in article 108 of the Spanish Securities Market Law, was aimed at taxing real estate transfers between non-entrepreneurs who might have avoided indirect taxes through a shares deal. However, it has an adverse and unjustified impact on entrepreneurial real estate transactions performed as a shares deal, as transfer tax is levied where VAT could have applied had the real estate been sold instead of the shares of the company.
Telephone +34 94 470 06 99 Fax +34 94 444 79 98
Visit Website Other Briefings June 2007
A more competitive corporate tax in biscay April 2007
An international view on Corporate Income Tax Act amendments March 2007
Discrimination on taxation of outbound dividends February 2007
New anti-avoidance measures for tax havens More Briefings >> Show all International Briefings >>
This anti-avoidance provision has been broadly criticised and, at the same time, has raised several controversies on how it should be applied. The Tax Fraud Prevention Act, in force as of January 1 2007, has clarified many of those controversies by including in the wording of the Law some of the criteria already set out by the Spanish Administrative and Judicial Courts. The main changes can be summarised as follows: Indirect ownership of real estate: transfer tax also applies to a sale of shares of a company that has control over the other company, the assets of which consist of real estate located in Spain. There is an exception if the shares sold are traded in an organised stock exchange market; this exception makes it possible for an acquisition of the shares of a holding company of an industrial group with a subsidiary owning Spanish real estate not to trigger transfer tax. However, where the target is not a listed company, Spanish transfer tax could be levied on the purchase of international groups, even where the subject matter of the transaction is the shares of a non-resident entity. It could be argued that the acquisition of shares of a non-resident entity falls outside the territorial scope of the Spanish laws in question, but this is still controversial. Computation of the real estate assets: the market value of all assets as of the date of the sale must be taken into account in order to determine whether the real estate located in Spain reaches 50% of the company's total assets. Acquisition of the control of a company and taxable base:
1 of 2
14/6/07 9:48 am
Transfer tax on the sale of Spanish real estate companies - Internat...
http://www.internationaltaxreview.com/?Page=10&PUBID=35&...
transfer tax applies where more than 50% of the shares of the company are acquired or if, once 50% of the shares of the company are owned, additional shares are acquired. The transfer tax base is determined by applying the percentage of participation reached when the control is acquired, to the market value of the real estate assets. If the buyer already had control, then the tax base would be determined by applying the additional percentage obtained, to the market value of the real estate. Ownership split between companies of the same group: in order to determine whether the buyer has acquired control of a company (such as whether the 50% participation threshold has been exceeded), the participations owned by other companies belonging to the same group shall be computed. So this brings an end to structures where the acquirer would set up two companies to acquire 50% of the target each, so that none of them acquired control (this kind of structure had already been challenged by the Spanish courts). Despite the changes, and although the wording of the new provision is far clearer than the old one, the main complaint remains, which is that real estate transactions between entrepreneurs instrumented as a shares deal remain subject to transfer tax instead of VAT. At the same time, a controversy remains unsolved: whether a sale of shares of non-Spanish entities indirectly owning Spanish real estate falls within or outside the territorial scope of the Spanish Securities Market Law and of the Spanish Transfer Tax Act. Luis M. ViĂąuales (luis.manuel.vinuales@garrigues.com)
Print this story
ADVANCED SEARCH Keyword(s)
Category International Updates
Period:
Order by:
All
Relevance
Previous Three Months
Date - newest first
Previous Six Months
Date - oldest first
One Year Specify Date Range From:
December
1999
To:
June
2007
Please read our Terms and Conditions and Privacy Policy before using the site. If you have any questions please see our FAQ. All material subject to strictly enforced copyright laws. Š2007 Euromoney Institutional Investor PLC.
eee
2 of 2
14/6/07 9:48 am