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V1582-18 7 June 2018 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · entidades sin fines lucrativos

Directors of participated companies must return remuneration to the entity to maintain special tax status

A foundation has requested clarification on whether a trustee serving as a board member of a participated company violates the requirement for unpaid positions. The Directorate General for Taxes (DGT) clarifies that to preserve the special tax regime, any remuneration received by the director from the commercial company must be returned to the foundation.

The question raised

Question raised: That a clarification of the inquiry be issued, resolving whether or not the circumstances contained in section 5 of article 3 of Law 49/2002, of December 23, on non-profit entities and tax incentives for patronage, are considered to be met.

The DGT's ruling

The positions of patron, statutory representative, and member of the governing body must be unpaid, allowing only the reimbursement of justified expenses. The requirement of being unpaid also applies to administrators representing the entity in commercial companies in which it participates. Such administrators may receive remuneration from the commercial company provided that these are reintegrated into the entity they represent. Otherwise, article 3.5 of Law 49/2002 would be breached and the entity would not be able to benefit from the special tax regime.

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