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V0258-16 25 January 2016 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
OTRO · entidades sin fines lucrativos

Directors of companies in which a foundation holds an interest may only receive remuneration if it is reimbursed to the foundation

A query was raised regarding whether a paid director of a commercial company, whose shareholder is a foundation, violates the requirements for non-profit entities. The DGT ruled that remuneration is permitted only if the director reimburses such amounts to the entity they represent.

The question raised

Whether the fact that the consulting natural person holds the position of a paid administrator in a commercial entity of which the Foundation is the sole shareholder implies non-compliance with Article 3.5 of Law 49/2002, of December 23, on the tax regime of non-profit entities and tax incentives for patronage, or, where applicable, whether the Foundation is an indirect holder of a commercial entity in which the consultant holds the position of a paid administrator.

The DGT's ruling

The positions of patron, statutory representative, and members of the governing body must be unpaid pursuant to Article 3.5 of Law 49/2002. This requirement of gratuitousness extends to administrators representing the entity in commercial companies in which it participates, directly or indirectly. Notwithstanding, remuneration for the status of administrator shall be valid if the amounts received are reimbursed to the represented entity. If no reimbursement is made, the requirement of gratuitousness will be breached and the entity will be unable to benefit from the special tax regime.

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