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A French tax resident asks whether selling shares in a Spanish company is subject to Spanish tax. The DGT rules that since the shareholding is not substantial and the company's assets are not predominantly immovable, the income is only taxable in France.
Question raised
According to the Convention between Spain and France, gains from the alienation of shares may only be taxed in Spain if they constitute a substantial holding. A substantial holding is considered to exist when the transferor, alone or together with related persons, holds at least 25% of the capital or profits in the twelve preceding months. Since siblings are not considered related persons under the Protocol to the Convention, their holdings are not aggregated with those of the taxpayer. If the holding is less than 25% and the asset is not primarily real estate, the gain is only taxed in the State of residence of the transferor.
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