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A taxpayer inquired whether payment of an indemnity for breaching a non-competition clause and no-capture clause in a share purchase agreement could be considered a patrimonial loss. The DGT confirms that such a loss is indeed a computable patrimonial loss in the general tax base.
Question posed: Possible consideration of the indemnity as a capital loss for Personal Income Tax purposes.
The obligation to indemnify for the breach of a non-compete clause constitutes a capital loss, as it is a variation in the value of assets unrelated to the exceptions set forth in Article 33.5 of Law 35/2006. Being an autonomous event independent of the transfer of shares, it is classified as general income. Its integration shall be carried out in the general tax base in accordance with the limits of Article 48 of Law 35/2006.
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