The income tax of non-residents and the transfer of shares

Consequently, the transfer of shares of a Spanish entity that has as an asset a real estate in Spain implies an increase in equity subject in Spain.

Even the transfer of shares of a non-resident company whose asset is a real estate in Spain; It also generates an increase in equity subject in Spain. It is necessary to eradicate the idea that the transfer of shares of a non-resident company in Spain of this type has no physical consequences in Spain since it does.

However, in each case, the corresponding double taxation agreement must be analysed to determine whether this contingency exists or not, although the Treasury is considering the interpretation of the agreements increasingly restrictive.

Royal Legislative Decree 5/2004, of March 5th, which approves the consolidated text of the Law on Non-Resident Income Tax (Valid until January 1st, 2016) makes it quite clear in its article number 13: income obtained in Spanish territory:

1. Income obtained in Spanish territory are considered the following:

• i) The capital gains:
  • 1.º When they are derived from securities issued by persons or entities resident in Spanish territory.
  • 2.º When they are derived from other movable property, other than securities, located in Spanish territory or of rights that must be fulfilled or exercised in Spanish territory.
  • 3.º When they come, directly or indirectly, from real estate located in Spanish territory or from rights related to them. In particular, they are considered to include:

The capital gains derived from rights or participation in an entity, resident or not, whose asset is mainly constituted, directly or indirectly, by real estate located in Spanish territory.

The capital gains derived from the transfer of rights or interests in an entity, resident or not, that give the owner the right to enjoy real estate located in Spanish territory.

Francisco Guijarro - Director Departamento Asesoría Fiscal