This report explains how recent tax changes are likely to affect the approach to mergers and acquisitions (M&A) in Spain.
This report explains how recent tax changes are likely to affect the approach to mergers and acquisitions (M&A) in Spain.The report then addresses three fundamental decisions faced by a prospective buyer:
Tax is, of course, only one part of transaction structuring. Company law governs the legal form of a transaction, and accounting issues are also highly relevant when selecting the optimal structure.These areas are outside the scope of the report. Some of the key points that arise when planning the steps in a transaction are summarized later in the report.
The following summary of recent Spanish tax changes is based on current legislation up to 31 January 2018.
Since the 2016 edition of this report, several modifications affecting M&A transactions have been implemented. Most of these changes were introduced by the Royal Decree 3/2016 approved on 3 December 2016.
In addition to the domestic tax changes discussed below, on 7 June 2017, Spain and 67 other jurisdictions signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS) and improve dispute resolution mechanisms. Once ratified, the multilateral instrument (MLI) will not override or amend existing bilateral tax treaties. Rather, it will apply alongside the covered tax agreements, modifying their application in order to implement BEPS measures.
The scope of these modifications is still uncertain. Changes under the MLI may take effect in 2019, though some tax treaties may be affected sometime in 2018. Developments concerning the MLI should be closely monitored in order to evaluate its potential impact on transaction structuring.
New restrictions on carry forward of tax losses
For tax periods starting on or after 1 January 2016, new limitations on carry forward of tax losses were introduced for large companies:
When entities are included in a tax group, the above limits apply to the taxable base of the group as a whole.
Limitation on generated or carried forward tax credits
To avoid domestic or international double taxation, for taxpayers with turnover of EUR20 million or more in the 12 months before the beginning of the relevant FY, the amount of tax credits generated in the FY or carried forward from previous FYs cannot jointly exceed 50 percent of the tax payable (before deducting the tax credits).
The excess can be deducted in following FYs, together with the tax credits generated in the relevant FY, subject to the thresholds noted above but without any timing limitation.
Recapture of pre-2013 portfolio impairments
A new regime is introduced to revert the portfolio impairments that were tax-deductible in tax periods beginning before 1 January 2013 (under article 12.3 of the Spanish Corporate Income Tax (CIT) Law then in force).
Until FY 2013, the former law allowed partner entities to deduct recorded and unrecorded (i.e. no accounting
registration was required) portfolio impairments from the decline in value of direct interests held in their subsidiaries.
As of FY2013, this tax regime is abolished and a transitional regime was established to recapture amounts deducted in prior years. Under this regime, the expense deducted in prior years had to be added back to the taxable base if the equity of the subsidiary at year-end exceeded the equity at the beginning of the FY (no accounting registration is required) and/or the relevant subsidiary distributed a dividend, unless the dividend was not recognized in accounting income.
Under the rules now in force, taxpayers that deducted the impairment for tax purposes and have not completely added it back to the CIT base are subject to ‘minimum clawback rules’ requiring them to at least recapture the portfolio impairments that were tax-deductible in tax periods beginning before 1 January 2013, in equal parts for each of the first 5 tax periods beginning on or after 1 January 2016 (i.e. 20 percent per FY) unless the depreciated shares were transferred. In that situation, the reversion would be included in the same tax period as the transfer, up to the positive income resulting from the transfer. Where the transitional rules determine that the expense must be added back over a shorter period, the recapture must be carried out according to the transitional rules.
Recapture of losses of non-Spanish permanent establishments
Before 2013, losses from a permanent establishment abroad could be considered as tax-deductible for CIT purposes.
For tax periods starting on or after 1 January 2016, new limitations apply when a taxpayer transfers a permanent establishment at a gain. In this case, the tax-exempt amount equals the gain reduced by the sum of net losses incurred by the permanent establishment before FY2013 that exceed the net profit generated by the permanent establishment from FY2013 onward.
Minimum corporate income tax interim payment Interim payments must be calculated under the ‘base method’ or ‘quota method’, depending on prior FY’s net turnover of the taxpayer (individual company when taxed on a
stand-alone basis or tax group when taxed on a consolidated basis). Where the net turnover in the prior FY exceeds EUR6 million, the base method applies.
In the base method, the base of the interim payment is calculated on the accounting result corresponding to the first 3, 9 and 11 months of the calendar year, taking into account the corresponding book-to-tax adjustments according to the CIT Law.
The amount is determined by applying a 24 percent rate where turnover during the 12 months before the beginning of the relevant FY is at least EUR10 million, or 17 percent if turnover is lower.
As of FY 2016, a minimum CIT payment on account is required for entities/tax groups with net turnover exceeding EUR10 million (in the 12 months before the start of the FY). The minimum CIT payment has been fixed at 23 percent of the positive after-tax P&L result of the first 3, 9 and 11 months of each calendar year.
Three advance CIT payments of the annual tax payment must be made during the first 20 calendar days of April, October and December. The final CIT payment must be made with the annual CIT return.
Annual CIT returns must be filed within 25 calendar days following the 6 months after to the end of the tax year (i.e. if the tax year coincides with the calendar year, the return must be filed between 1 July and 25 July of the following calendar year). The CIT payments on account are estimates that reduce the final CIT payable in the following year.
Losses on transfer of shares and permanent establishments qualifying for participation exemption
For tax periods starting on or after 1 January 2017, losses on the transfer of shares qualifying for the Spanish participation exemption regime are not tax-deductible for CIT purposes. The same tax treatment is given to the losses derived from the transfer of shares in non-Spanish resident entities that are tax haven residents or do not comply with the so-called “subject-to-tax” requirement (i.e. the non-Spanish resident entity must be subject to a CIT similar to the Spanish CIT at a minimum 10 percent rate). The Spanish CIT Law presumes that this test is passed when the company is resident in a country that has signed a tax treaty with Spain with an exchange of information clause).
Losses arising on the liquidation of a subsidiary are tax- deductible unless the liquidation is part of certain types of reorganizations (regardless of whether the tax rollover regime applies). In any event, any loss that is deductible for CIT purposes must be reduced by dividends received in the previous 10 years in which they were exempt or entitled to claim a tax credit). Similar tax treatment is given to the losses derived from the sale of a permanent establishment are no longer deductible, while losses derived from closing a permanent establishment may be considered as tax- deductible for CIT purposes. In the latter case, the loss
is reduced by the sum of the profit from the permanent establishment that benefitted from the participation exemption in earlier years.
2014 tax reform
On 28 November 2014, the Spanish government approved one of the most far-reaching reforms of the Spanish tax system in the recent years. As a result, as of January 2015, most transactions performed in Spain are covered by the new CIT law (Law 27/2014), which incorporates the tax regime for mergers, splits and other reorganization transactions covered in European Union (EU) directives. This tax regime, which
can be complex, should be considered at each phase of an acquisition. Specific anti-avoidance provisions may apply, and local advice should be sought.
The new CIT Law was amended in line with the Organisation for Economic Co-operation and Development’s (OECD) final recommendations under its Action Plan on BEPS.
The following sections summarize the tax rules in place that affect M&A transactions following the Spanish tax reform.
Corporate income tax rate
The standard CIT rate is 25 percent. Other reduced rates can apply for special entities.
Additional limitation for leveraged buy-out (LBO)
As of 1 January 2012, two limitations affecting to the tax deductibility of financial expenses were introduced in the Spanish CIT law:
Law 27/2014 also introduced an ‘anti-leveraged buy- out’ (anti-LBO) provision restricting the deductibility of acquisition financing as of 1 January 2015. The CIT law provides for a rule that limits the tax-deductibility of interest accruing on acquisition debt, where such interest can be offset against the taxable profits of the target entities acquired (through the applicability of the fiscal unity regime or a post-acquisition merger).
Under the anti-LBO rule, for purposes of assessing the 30 percent operating profits threshold applicable under the earnings-stripping rules, the operating profits of the target entities acquired (and which were included in the acquirer’s fiscal unity, or merged with or into the acquirer) should be excluded.
Several limitations to this rule should be considered:
Tax losses: change of control restrictions
The CIT law restricts the transfer of tax losses on a change of ownership where:
Period to review tax losses and tax credits
The statute of limitations period is 10 years from which an entity generates tax losses and/or tax credits (the general limitation period is 4 years). Once this 10-year limitation period has elapsed, the Spanish tax authorities cannot review the correctness of the calculation of carried forward tax losses (or tax credits), but the taxpayer should be able to provide:
Participation exemption regime
As of FY2015, the participation exemption regime is extended to dividends or capital gains from Spanish subsidiaries, provided certain requirements are met:
The CIT law also introduced a system for calculating exempt dividends and gains derived from multi-tiered structures where some of the entities within the chain of ownership are not compliant with the participation exemption requirements.
This exemption does not apply to capital gains derived directly or indirectly from:
The exemption does not apply to any gains on the transfer of holdings in entities resident in a country or territory classified as a tax haven, unless they reside in an EU member state and can demonstrate that their formation and operations are based on valid economic reasons and they engage in economic activities.
Neutralization of the effect of hybrid mismatches
Law 27/2014 introduced certain amendments to anti-abuse rules in accordance with the OECD BEPS project.
In this respect, the deductibility of expenses is disallowed with respect to related parties that, due to a different classification for tax purposes, do not generate income, generate exempt income or are taxed at a rate of less than 10 percent (hybrid transactions).
Additionally, intragroup profit-participating loans (PPL) are characterized as equity instruments for Spanish tax purposes. As a consequence, interest payments with respect to PPLs granted as of 20 June 2014 by an entity belonging to the same group would be assimilated to dividend distributions, so they would not be considered as a tax-deductible expense, regardless of the tax residency of the lender. (Under previous tax legislation, interest accrued under PPLs was tax-deductible where it complied with the general tax rules for the deductibility of financial expenses).
The capitalization reserve is a tax benefit effective as of 1 January 2015. Under this benefit, companies can reduce their taxable base in an amount equal to 10 percent of the increase of their net equity during a given year, provided they book a non-disposable reserve for the same amount and keep it on their balance sheet for 5 FYs.
For a tax group, the tax deduction of the capitalization reserve is calculated on a tax group basis, although the accounting reserve can be recognized by any of the tax group’s entities.
Tax neutrality regime
Spanish CIT law incorporates the tax regime for mergers, spin-offs and other reorganization transactions covered in EU directives. Generally, asset transfers carried out through such transactions do not have any tax implications (either from a direct, indirect or other Spanish tax perspective) for the parties involved (transferor, beneficiary and shareholder) until a subsequent transfer takes place that is not protected by this regime.
When applying for the benefits of this regime, it is critical to have a relevant sound business reason for the merger, other than merely achieving a tax benefit (i.e. tax saving or deferral).
As of FY2015, this tax neutrality regime was amended as follows:
Rule for share premium redemption or share capital reduction
As of 1 January 2015, the repayment of the share premium is deemed as a dividend distribution to the extent of the positive reserves generated during the holding period. If no positive reserves exist, the share premium redemption would not have Spanish tax effects (i.e. it would reduce the tax cost of the shares).
Impairment of tangible, intangible and real estate assets
As of 1 January 2015, losses on the impairment of tangible, intangible and real estate assets, which were previously tax-deductible under certain circumstances, are deductible only if they are sold to third parties or if they are depreciated during their useful life.
Asset tax depreciation
For tax periods starting in 2013 and 2014, Spanish tax law imposed a limitation for ‘large-sized companies’ (i.e.,companies with a turnover of, or being part of a mercantile group with a turnover, exceeding EUR10 million in the preceding financial year). These entities may only take 70 percent of the maximum depreciation rates for tax purposes corresponding to fixed assets.
The depreciation expense considered non-tax-deductible according to the above is deductible on a linear basis over a 10-year period or, optionally, over the remaining lifetime of the assets, for FYs starting in 2015 and later.
To mitigate adverse tax consequences from the reduced CIT rate (which was 30 percent before FY2015), the Spanish CIT law introduced a tax credit that would apply on the recapture of accounting depreciations that were not deducted in FY2013 and FY2014. The rates of this tax credit are 2 percent for 2015 and 5 percent for 2016 and future years. Unused tax credits may be carried forward indefinitely.
Tax treatment of intangible assets and goodwill
Intangible assets, such as patents, may be amortized if they depreciate and have a limited useful life.
Under certain circumstances, goodwill and intangible assets with an indefinite life are amortizable for tax purposes. As of 1 January 2015, the maximum annual depreciation rate is 5 percent. However, for the 2015 tax year, the maximum annual depreciation rate is 2 percent for intangible assets and 1 percent for goodwill. As of 1 January 2015, it is possible to deduct goodwill amortization even in the case of an acquisition by group companies.
Notwithstanding the above, Audit Law 22/2015, dated 20 July 2015, modifies the tax treatment of intangible assets as follows:
As a result of these amendments, for tax years starting in 2016 and later, the amortization expense of intangible assets must be recognized for accounting purposes in order to be tax-deductible.
The difference between the accounting percentage (in principle, 10 percent) and the tax percentage (5 percent) requires book-to-tax adjustments in order to determine the taxable base for CIT purposes.
Tax consolidation rules
As of 1 January 2015, in line with several EU court cases, Law 27/2014 allows the application of the tax consolidation regime to those structures where two Spanish companies have a direct or indirect common non-resident shareholder, as long as the latter is not resident in a tax haven for Spanish tax purposes, thereby allowing so-called ‘horizontal tax consolidation’. The non-resident shareholder should comply, among others, with the following requirements:
Finally, permanent establishments of foreign companies will also be able to form part of a tax group, not only as the dominant entity but also as a member of the group.
Controlled foreign company rules
As of 1 January 2015, the Spanish CFC rules were amended to include, among others, additional substance requirements to be met by the foreign subsidiary in order to avoid the imputation of the foreign low-taxed income.
EU directives: anti-abuse rules
The requirements for the application of the EU Parent-Subsidiary Directive and EU Royalties Directive were modified in FY2015 to prevent abusive situations in which the majority of the participation in the parent company was held by non-EU resident companies. Under the amendment, it is necessary in such cases to prove the existence of valid economic purposes and solid business reasons for incorporating the EU parent company.
The new CIT law abolished the reinvestment tax credit (which reduced the effective CIT rate of a capital gain if certain requirements were met) and the environmental tax credit. The tax incentives for intangibles (i.e. research and development (R&D) tax credit, patent box regime) are retained.
Patent box regime
Under a partial tax allowance included in Spanish CIT Law, only 60 percent of income obtained from, among others, the transfer of the ‘qualifying intangible assets’ (e.g. rights to use or exploit patents, drawings or models, plans, formulas and know-how) is net income (‘qualifying income’) for tax purposes, where certain requirements are met.
Taxpayers applying this allowance can request an ‘agreed prior assessment’ from the Spanish tax authorities validating the qualification and valuation of the assets assigned or transferred.
However, the minimum standards for domestic tax provisions recommended under Action 5 of the OECD BEPS project provide a framework for the patent boxes regimes.These standards aim to ensure that these regimes only rewards only substantial activity (‘nexus approach’).
Therefore, under the nexus approach only patents, other intangible assets that are functionally equivalent to patents and legally protected, patents defined broadly, copyrighted software and certain other intangible assets qualify for tax benefits under this regime.
Following OECD developments, the EU Code of Conduct Group was established within the framework of the European Council (EC) to monitor the implementation by the EU member states of certain tax measures (as approved by the Council and the member state governments).This group regularly reports on its work, and these reports are forwarded to the EC, usually twice a year.
In 2017, the EU Code of Conduct Group decided that the patent box regimes of some countries, including Spain, did not comply with the nexus approach and urged these countries to change their legislation accordingly.
Spain has indicated that it would adopt new legislation at the beginning of 2018 to align its patent box regime with the OECD requirements. However, details are not yet available, and it is not known when the legislation will be made public and take effect. Future legislative developments regarding the Spanish patent box regime should be closely monitored.
Documentation requirements have changed for periods starting on or after 1 January 2016, based on full implementation of the OECD BEPS Action 13 recommendations. For tax periods beginning on or after 1 January 2016, two types of documentation must be maintained:
The documentation covers domestic and international transactions, except for:
Additionally, country-by-country (CbyC) reporting obligations apply to Spanish tax resident entities that are the ‘head’ of a group (as defined under the Spanish commercial law) and that are not at the same time a dependent of any other entity, to the extent that the consolidated group’s net turnover in the immediately preceding FY exceeds EUR750 million.
The transfer pricing documentation does not have to be submitted within the Spanish tax authorities but must be available to them on request as of the deadline for filing the annual corporate tax return (i.e. 25 July of the next FY for entities following the calendar year).
Failure to comply with the documentation requirements may result in specific penalties for not maintaining the correct documentation or for not applying the arm’s length principle (i.e. setting transfer prices at market value).
Value added tax
The value added tax (VAT) exemption on second supplies of real estate assets can be waived even if the buyer does not have the right to deduct 100 percent of the input VAT borne. This would mitigate the transfer tax cost when the buyer applies the pro rata VAT rule because the real estate asset is partially used for activities that are VAT-exempt.
Generally, a transaction can be performed as a share deal, in which the shares in the target entity are sold, or as an asset deal, in which the assets (and normally the associated liabilities) are the objects of the transaction.
The transfer of shares may allow the seller to mitigate its capital gains tax, for companies through participation
exemption rules and for individuals through capital time-based gains reliefs. However, the buyer cannot step-up the tax basis in the assets of the target and inherits any hidden capital gains and contingencies. Losses derived from an intragroup transfer may be compensated with limitations.
The sale of assets normally produces a taxable capital gain for the selling company (25 percent CIT rate), which might be difficult to mitigate (although some tax benefits may be available). However, the acquiring entity gains a stepped- up tax basis. The buyer of shares assumes the liabilities of the company acquired (although they might be covered by indemnities in the sale and purchase agreement), while the acquirer of individual assets does not assume the tax risks of the selling company unless the acquisition is made by one or several persons or entities that continue a going concern.
However, in an asset deal in which a complete business unit is transferred, the liabilities connected to the business are also transferred. In this case, the buyer may limit its liability by obtaining a certificate from the Spanish tax authorities showing the tax liabilities and debts. The liabilities transferred then would be limited to those listed in the certificate.
Purchase of assets Tangible assets
Most tangible assets, except land, can be depreciated for tax purposes and spread over the period of their useful economic life, provided the depreciation is based on the asset’s recorded historical cost or on a permitted legal revaluation.
Special rules establish the specific depreciation percentages in force, which depend on the type of industry and assets involved. A maximum percentage of annual depreciation and a maximum depreciation period are established for each type of asset.
Intangible assets with finite useful lives are amortized depending on useful life. Intangible assets with indefinite useful life are amortized at a maximum annual rate of 5 percent.
Notwithstanding the above, as of tax years starting in 2016, intangible assets recognized in the accounts fall within a single category: intangible assets with a defined useful life. However, a new subcategory is created: ‘intangible assets whose useful life cannot be reliably estimated’. These assets are amortized over 10 years for accounting purposes, unless a different period is provided for in another law.
As a consequence, the amortization expense of intangible assets whose useful life cannot be reliably estimated must be recognized for accounting purposes in order to be tax- deductible.
The difference between the accounting percentage (in principle, 10 percent) and the tax percentage (5 percent) will imply book-to-tax adjustments in order to determine the taxable base for CIT purposes.
The premium paid by a buyer of a business as a going concern could be due to a higher value of the assets acquired or to the existing goodwill. As of tax years starting in 2016, goodwill may be included as an asset when it is acquired in ‘onerous basis’ and, in principle, is amortized over 10 years for accounting purposes.
As a consequence, the amortization expense of the goodwill must be recognized for accounting purposes in order to be tax-deductible.
The difference between the accounting percentage (in principle, 10 percent), and the tax percentage (5 percent) will imply book-to-tax adjustments in order to determine the taxable base for CIT purposes.
Additionally, the CIT law provides that goodwill and other intangibles arising as a consequence of a merger following a share deal are no longer tax-deductible if the share deal closes in 2015 or later years. The rationale for this tax change is that capital gains incurred by Spanish sellers on the disposal of shareholdings in Spanish entities are no longer taxable, so there is no double taxation to be mitigated.
Most tangible assets, except land, can be depreciated for tax purposes and spread over the period of their useful economic life, provided the depreciation is based on the asset’s recorded historical cost or permitted legal revaluation.
Special rules specify maximum depreciation percentages and periods for specific industries and types of asset.
Depreciation rates higher than the officially established or approved percentages can be claimed as deductible expenses where the company obtains permission from the tax authorities or can support the depreciation applied.
As of FY2015, the limitation of the tax deduction for the depreciation of assets established during FY2013 and 2014 is eliminated.
Pending tax losses and tax deduction pools are not transferred on an asset acquisition. They remain with the company or are extinguished. However, in certain cases, under the tax neutrality regime for reorganizations, it may be possible to transfer such tax attributes to the acquiring company.
Value added tax
VAT generally applies to the supply of goods or services by entrepreneurs and professionals, as well as to EU acquisitions and the importation of goods by all persons. The standard VAT rate is 21 percent.
Among others, VAT does not apply to transfers of sets of tangible or intangible elements that belong to a taxable person’s business or professional assets and constitute an independent economic activity capable of carrying on a business or professional activity on their own, regardless of any special tax regime that may apply to the transfer.
The buyer may deduct the VAT paid on inputs from the VAT charged on outputs and claim a VAT refund where the VAT paid exceeds the VAT charged monthly or quarterly. However, VAT paid on certain inputs, such as travel expenses, gifts and passenger cars, is non-deductible.
Corporate reorganizations defined in the tax-neutrality regime for CIT purposes are not subject to the 1 percent capital duty and are exempt from transfer tax and stamp duty. Also exempt from 1 percent capital duty are contributions in cash or in kind to the share capital or equity of a company and the transfer to Spain of the legal seat of a non-EU company.
Sales of real estate exempt from VAT (i.e. a second transfer of a building) are subject to a transfer tax at the rate established by the region in which the real estate is located, unless certain requirements are met and the transferor waives the VAT exemption. Sales of real estate included in a going concern may not be subject to VAT and thus are subject to transfer tax, without the possibility to elect being subject to VAT.
Stamp duty also applies to transactions, such as a sale of real estate, where the sale is subject to VAT and/or the taxpayer waives the VAT exemption on the transfer. There is compatibility between VAT and stamp duty.
Transfers of urban land (whether built on or not) are subject to a municipal tax on the increase in the value of urban land (TIVUL). TIVUL tax due depends on the holding period of the property and the land’s cadastral value. The taxable base of the tax is determined by applying to the cadastral value of the land at the disposal date a certain percentage determined by multiplying the number of years the land was held (maximum 20 years) by a coefficient ranging from 3 to 3.7. The tax rate may be up to 30 percent.
Purchase of shares Due diligence reviews
In negotiated acquisitions, the seller usually makes the target company’s official books and tax returns available to the buyer for due diligence review. An important part of the due diligence process is an in-depth review of the tax affairs of the potential target company by the advisors to the buyer.
Local or state taxes
No local or state taxes are payable on the transfer of shares.
Tax indemnities and warranties
In negotiated acquisitions, it is common practice for the buyer to ask the seller to provide indemnities or warranties for any undisclosed liabilities of the company to be acquired.
Tax losses under Spanish law can be carried forward without temporal limitation (an 18-year expiration period previously applied).
The tax losses cannot be offset where:
VAT and transfer tax are not payable on the transfer of shares, except in certain cases mainly involving the sale of shares as a means of selling real estate. In such cases, where more than 50 percent of the company’s assets by value consist of real estate not linked to its business activity and the acquirer receives more than 50 percent of the company’s voting rights directly or indirectly, the transfer of the shares may be subject to VAT or transfer tax, to the extent that the parties involved in the transfer of shares act with the intent of avoiding the tax otherwise due on the transfer of immovable properties.
Stamp duty is not payable, but brokerage or notary fees, which are normally less than 0.5 percent of the price, are applicable.
Several potential acquisition vehicles are available to a foreign buyer, and tax factors often influence the choice.
Local holding company
A local holding company is the most common vehicle for transactions. There are two main types of limited liability companies: Sociedad Anonima (SA) and Sociedad de Responsabilidad Limitada (SL).
Both entities have their own legal status (legal personality). Each has a minimum share capital (EUR60,000 for an SA and EUR3,000 for an SL) and may have one or more shareholders. Both are governed by Royal Legislative Decree 1/2010, dated 2 July 2010, on Corporate Enterprises.
Foreign parent company
Spain does not charge withholding tax (WHT) on interest and dividends paid to EU recipients (see the European Council Interest and Royalties Directive 2003/49/EC and the EU Parent-Subsidiary Directive 90/435/EEC).
Some tax treaties reduce the applicable WHT rates, which are normally 19 percent for interest and dividends and 24 percent for other income.
Non-resident intermediate holding company
Where the foreign country taxes capital gains and dividends received from overseas, an intermediate holding company resident in another territory could be used to defer this tax and perhaps take advantage of a more favorable tax treaty with Spain. However, the buyer should be aware that certain Spanish treaties contain anti-treaty shopping provisions that may restrict the ability to structure a deal in a way designed solely to obtain tax benefits. Similarly, where the non-resident intermediate holding company reduces the Spanish WHT
rate otherwise applicable, Spanish tax authorities may apply general anti-avoidance tax rules (GAAR) to challenge this structuring.
The target company’s assets or shares can be acquired through a branch. Although branches are taxed in a similar way to resident companies, they have the advantage of not attracting WHT on remittance of profits abroad, provided the foreign company resides in a tax treaty country or in the EU (with some exceptions).
Joint venture (and other vehicles)
Spanish partnerships engaged in business activities (Sociedad Colectiva or Sociedad Comanditaria) are treated as corporate taxpayers.
A buyer using a Spanish acquisition vehicle to carry out an acquisition for cash needs to decide whether to fund the vehicle with debt, equity or a hybrid instrument that combines the characteristics of both. The principles underlying these approaches are discussed below.
The investment may be financed on either the local or a foreign market. No limitations apply to local financing, provided the borrower is a Spanish resident. If the loan is granted by a non-resident, under the current exchange control system, the borrower must declare the loan to the Bank of Spain. Previously, the borrower had to obtain a number of financial operation by filing the appropriate form (PE-1 or PE- 2), depending on the amount of the loan.
The principal advantage of debt is the potential tax- deductibility of interest (see ‘Deductibility of interest’ later in this report), whereas the payment of a dividend does not give rise to a tax deduction. Another potential advantage of debt is the deductibility of expenses, such as guarantee fees or bank fees, in computing trading profits for tax purposes.
If it is decided to use debt, a further decision must be made as to which company should borrow and how the acquisition should be structured. To minimize the cost of debt, there must be sufficient taxable profits against which interest payments can be offset.
Normally, the pushdown of debt has been a structuring measure to allow the offsetting of the funding expenses against the target’s taxable profits.
Debt pushdowns implemented as intragroup transfers of shares are restricted as of 1 January 2012. Interest
expenses are not deductible when derived from intragroup indebtedness incurred to acquire shares in other group companies, whether resident or not, unless the taxpayer provides evidence that the transaction is grounded in valid business reasons.
Additionally, the CIT rule introduced an anti-LBO article. According to this rule, for purposes of assessing the
30 percent operating profits threshold applicable under the earnings-stripping rules described earlier, the operating profits of the target entities acquired (and which were included in
the acquirer’s fiscal unity, or merged with or into the acquirer) should be excluded.
Both joint stock companies (SA) and limited liability companies (SL) are barred from providing financing, fund assistance or guarantees for the acquisition of their own shares/participation or the shares/participation of their parent company. This restriction does not apply to companies lending in the ordinary course of their business or to loans made to employees.
Deductibility of interest
In addition to transfer pricing rules, there are other limits on the deduction of interest expenses on debt used to finance an acquisition, such as the general limitation on financial expenses and GAAR.
As of 1 January 2012, the deductibility of a company’s net financial expenses is limited to up to 30 percent of the EBITDA. Undeducted expenses may be carried forward without temporal limit. Where the net interest expenses of a taxable year are below the 30 percent limit, the unused difference (up to 30 percent of earnings before income taxes, depreciation and amortization — EBITDA) can be carried forward for 5 years. The 30 percent limit does not apply to net expenses up to EUR1 million.
Additionally, there are a number of situations in which a tax deduction for interest payments can be denied under increasingly complex anti-avoidance legislation. In particular, Spanish transfer pricing legislation, which applies to interest expenses and principal amounts, can restrict interest deductibility when the level of funding exceeds that which the company could have borrowed from an unrelated third party or where the interest rate charged is higher than an arm’s length rate.
Transactions caught by the rules are required to meet the arm’s length standard. Thus, where interest paid to an overseas (or Spanish) parent or overseas (or Spanish) affiliated company is in an amount that would not have been payable in the absence of the relationship, the transfer pricing provisions deny the deduction of the payments for Spanish tax purposes. According to the literal wording of the law, where both parties to the transaction are subject to Spanish tax, the authorities can adjust the results of the party whose benefits have been increased, so that there is usually no impact on the cash tax payable by the group (although losses can become trapped in certain situations).
The tax authorities could also reject the tax-deductibility of interest expenses under the anti-avoidance clauses in the general tax law (i.e. re-characterization of debt into equity).
Withholding tax on debt and methods to reduce or eliminate it
Generally, the payment of interest and dividends by Spanish residents is subject to 19 percent WHT (. The WHT may be credited against the recipient company’s income tax liability. Where certain requirements are met, the WHT on dividends is eliminated where the acquiring company holds a participation of more than 5 percent or a participation whose acquisition value has been over EUR20 million during an uninterrupted period of more than 1 year after the date of acquisition.
Additionally, this tax may be reduced or eliminated for dividends, interest and royalties, where the beneficiary is a resident of a tax treaty country.
Checklist for debt funding
It is possible to finance the acquisition with equity and debt. The distribution of dividends from the target to its shareholders as an alternative method of funding the acquisition is tax-assessable, although the shareholder may be entitled to a total or partial tax credit.
Tax-neutral regime for corporate reorganizations
There is a deferral regime in the Spanish CIT law for mergers, spin-offs, contributions in kind and exchanges of shares, among others. This was a special regime; however, as of the FY2015, the deferral regime is the general one. In order to not apply the deferral, the Spanish tax authorities must be notified.
This special regime is mainly aimed at achieving the tax- neutrality of corporate restructuring operations by deferring the taxation that could otherwise arise until the acquiring company transfers the assets acquired.
This tax-neutral regime applies provided that the restructuring transaction is supported with valid business reasons other than tax reasons (anti-abuse clause). In particular, where the main purpose of the reorganization is to obtain a tax advantage and the non-tax reasons are ancillary or not sufficiently relevant compared with the tax advantage obtained, the Spanish tax authorities would likely challenge the tax-neutrality regime.
The new CIT law expressly provides that, if the deferral requirements are not met, the tax authorities can only regularize the tax advantage unduly taken but cannot claim the tax charge on the unrealized gains of the dissolved entity.
Three kinds of merger are possible in Spain according to the tax definition of ‘merger’:
Three kinds of splits are possible in Spain:
Where the split involves two or more acquiring entities and the allocation of the shares of the acquiring entities to the shareholders of the transferring company is in a different proportion than their holding in the transferring company, each set of separated assets is required to constitute an autonomous branch of activity.
Contribution in kind
Through a contribution in kind, a company, without being dissolved, transfers an autonomous economic unit of activity to another entity, receiving in exchange shares issued by
the acquiring company. The contribution may also consist of individual assets, provided certain requirements are met.
Exchange of shares
In an exchange of shares, an entity acquires a participation in the share capital of another entity that allows it to obtain the majority of voting rights. In exchange, the shareholders of the company acquired are given participation in the acquiring company and, if necessary, monetary compensation that cannot exceed 10 percent of the nominal value of the shares.
Generally, the capital gains derived from the difference between the net book value and the market value of the goods and rights transferred as a consequence of the above transactions are not included in the transferor’s CIT tax base.
The goods and rights acquired by an entity as a consequence of any of the transactions mentioned earlier would be valued for tax purposes at the same value they had in the transferring entity before the transaction took place. The payment of taxes is deferred until the acquirer subsequently transfers the assets involved in the transactions.
The income derived from the allocation of the acquiring entity’s participations to the transferor’s partners is not added to their taxable bases in certain situations specified in the legislation. For tax purposes, the participations received have the same value as those delivered.
Step-up and goodwill depreciation
The CIT law provides that goodwill and other intangible assets arising as a consequence of a merger are no longer tax- deductible if the share deal closes in 2015 or later years.
The rationale for this change is that capital gains incurred by Spanish sellers on the disposal of shareholdings in Spanish entities are no longer taxable (due to the participation exemption regime), so there is no double taxation to be mitigated. The CIT law provides for transitional rules for shares acquired before 1 January 2015.
All the transactions mentioned earlier, except contributions in kind consisting of individual assets, are exempt from or not subject to transfer tax or the local tax on urban land appreciation. These transactions are not subject to VAT where the assets and rights transferred constitute a ‘branch of activity’, as defined for VAT purposes.
Subrogation in tax rights and obligations
In the above transactions, all of the transferring entity’s tax rights and liabilities are transferred to the acquiring company or, in the case of a partial transfer, only those relating to the goods and rights transferred. Where some of the transactions are covered by the special tax regime, the acquiring company can offset losses from the transferring entity, subject to certain limits.
Consideration should also be given to using hybrids, which are instruments treated as equity for accounting purposes for one party and debt (giving rise to tax-deductible interest) for the other. Following the OECD’s BEPS recommendations, as of FY2015, expenses derived from operations with related parties that, due to a different qualification, do not generate an income or generate income that is exempt or subject to a tax rate under 10 percent, are not deductible.
Additionally, interest on hybrid financial instruments representing share capital of the issuer (e.g. non-voting shares, redeemable shares) and interest on profit-participating loans granted to group entities are characterized as dividends and could benefit from participation exemption.
The new CIT law also provides a special rule for derivatives when the legal holder of the shares is not the beneficial owner of the dividend, such as stock loans or equity swaps. In these cases, the exemption is granted to the entity that economically receives the dividend (through a manufactured dividend or compensation payment), and not to the formal holder of the shares, provided that certain conditions are met (e.g. accounting recognition of the shares).The participation exemption does not apply to dividends that are characterized as a tax-deductible expense in the entity distributing the dividend.
On deferred settlement or payment by installments, income and/or gains are deemed to be obtained on a proportional basis as the payments are made, unless the entity decides to use the accrual method of accounting.
Transactions in which the consideration is received, in whole or in part, in a series of payments or a single late payment are deemed to be installment or deferred price transactions, provided that the period between delivery and the maturity of the last or only installment exceeds 1 year.
Concerns of the seller
Where a purchase of both shares and assets is contemplated, the seller’s main concern is the reduction or elimination of the gain derived from the sale. Thus, the following factors should be taken into account:
Company law and accounting
Spanish accounting legislation was adapted to European legislation by Law 16/2007, which was designed to reform commercial accounting rules and harmonize them with EU rules.
The General Accounting Plan was approved by the Royal Decree 1514/2007.
For accounting purposes, a business combination may be categorized as either an acquisition or an intragroup operation.
In essence, a combination is regarded as a merger where it affects a pooling of business interests (where one company’s equity is exchanged for equity in another company) or where shares in a newly incorporated company are issued to the merging companies’ shareholders in exchange for their equity, with both sides receiving little or no consideration in the form of cash or other assets.
The acquisition accounting may give rise to goodwill. The net assets acquired are recorded on the consolidated balance sheet at their fair values, and goodwill arises to the extent that the consideration exceeds the aggregate of these values. Acquisition accounting principles also apply to purchases of trade and assets.
An important feature of Spanish company law concerns the ability to pay dividends. Distributions of profit may be made only out of a company’s distributable reserves provided that the minimum legal reserved has been recorded. Interim dividends are allowed.
Distribution of pre-acquisition retained earnings of the acquired company should be recorded as a reduction in the value of the participation acquired (for both accounting and tax purposes). In certain cases, even if the dividend is not recognized as taxable income, the buyer could obtain a tax credit to avoid double taxation for the dividend received if enough evidence can be provided of the taxation borne by the seller on the sale of the target shares.
Finally, a common issue on transaction structuring arises from the provisions for financial assistance. Generally, it is illegal for a company to give financial assistance, directly or indirectly, for the purpose of acquiring that company’s shares.
Law 3/2009 regulating structural modifications of commercial companies also deals with financial assistance. It stipulates that in the case of a merger between two or more companies, a report by an independent expert on the merger plan is required where any of the companies has incurred debt during the previous 3 years to acquire control over or essential assets from another company participating in the merger.The independent expert must pronounce on whether or not financial assistance has been provided.
According to the criteria of the Spanish accounting authorities, certain waivers of loans or conversions of loans into equity made in the context of a debt restructuring process could trigger accounting income for the borrower, which would be included in its taxable income.
Grouping of companies for tax purposes is possible provided the dominant company (which must be a resident entity in Spain, unless no Spanish entity meets the dominant company requirements) directly or indirectly holds at least 75 percent (70 percent for listed companies) of the stock of all companies of that group at the beginning of the year in which the tax-consolidation regime is to be applied.This participation must be maintained for the entire FY in which the consolidation regime is applied.
Formerly, the group dominant entity had to be a Spanish entity. However, according to the CIT law, Spanish sister entities with a non-Spanish parent (and Spanish subs indirectly owned) can now form a tax group.
The main rule governing transactions between associated parties is that the transactions should be carried out at prices that would have been agreed under normal market conditions between independent companies (i.e. arm’s length price).
There are no advantages in Spain for a company with dual residency.
Foreign investments of a local target company
Generally, from an exchange control point of view, foreign investments are unregulated and can be freely made, although they must be declared to the foreign investments registry by filing the relevant forms.
Where the foreign participation in the Spanish company is higher than 50 percent, prior communication with the general directorate of foreign transactions is required when the foreign investor is a resident of a tax haven.
Advantages of asset purchases
Disadvantages of asset purchases
Advantages of share purchases
Disadvantages of share purchases
Carlos Marin Pizarro
KPMG Abogados, S.L.
Edificio Torre de Cristal
Paseo de la Castellana, 259 C -Madrid
T: +34 91 456 34 00