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V0776-19 11 April 2019 · SG de Tributación de las Operaciones Financieras Criterion in force
IRPF · instituciones de inversión colectiva

Tax deferral for reinvestment in collective investment schemes may apply if the marketing entity acts as the exclusive intermediary

A bank has enquired whether its clients may apply the tax deferral regime for reinvestment in foreign collective investment schemes (CIS) if the securities are held in an offshore custody account. The Directorate General for Taxes (DGT) has ruled that this is possible, provided that the marketing entity in Spain acts as the principal, necessary, and exclusive intermediary for all transactions.

The question raised

Application in the case presented of the tax deferral regime for reinvestment between holdings and shares of collective investment institutions provided for in Article 94 of Law 35/2006, on Personal Income Tax.

The DGT's ruling

To comply with Article 94.2.a) 1º of the LIRPF, the taxpayer must direct the order to the distributor and its intervention must be direct, acting as the primary, necessary, and exclusive intermediary. The foreign custody agreement must guarantee that no disposal operation can be carried out without the mediation of the distributor registered with the CNMV. Furthermore, the contract must provide for the substitution of the distributor by another registered with the CNMV if the former ceases its activity regarding the ICI.

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