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A German GbR develops software with two partners, one resident in Spain and one in Germany, both exercising contracting power from their respective countries. The DGT concludes that the GbR is a rental attribution entity, not resident for Hispano-German tax treaty purposes due to German tax transparency, and that the German partner's activities in Spain constitute a permanent establishment. The entity is taxed as an IRNR contributor for the income attributable to the non-resident partner and must file an annual self-assessment.
Cuestión planteada
La GbR, al carecer de personalidad jurídica, no ser contribuyente del IS alemán y atribuir rentas a los socios, cumple los requisitos de ERAR conforme a la Resolución DGT de 6 de febrero de 2020. No puede ser residente a efectos del CDI Hispano-Alemán por ser transparente (art. 4 CDI y Comentario MCOCDE 8.8 al art. 4). Al existir actividad económica en España con lugar fijo de negocios y poder de contratación del socio español, resulta aplicable el art. 38 TRLIRNR: la entidad es contribuyente del IRNR por la renta atribuible al socio no residente, con base imponible según art. 89 LIRPF y tipo de gravamen del IS.
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