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V2369-23 4 September 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · entidades sin fines lucrativos

Contributions to commercial companies not subject to Law 49/2002 do not count as income for general interest purposes

A foundation has inquired whether contributions made to US commercial companies of which it is the owner can be considered destined for its general interest purposes to meet the 70% income requirement. The Directorate General for Taxes (DGT) responds that, as these are commercial companies not subject to Law 49/2002, such contributions do not meet the criteria to be considered income intended for the achievement of the foundation's purposes.

The question raised

1) Whether article 3.2 of Law 49/2002, of December 23, on the tax regime of non-profit entities and tax incentives for patronage, must be interpreted by reference to article 27 of Law 50/2002, on Foundations.

The DGT's ruling

For an indirect activity to meet the requirement of general interest, it must be carried out through other entities subject to Law 49/2002 and through an active task of monitoring and control. In this case, contributions to commercial companies resident in the United States do not meet the requirements to be considered income intended for the achievement of the foundation's purposes, as these entities are not subject to Law 49/2002.

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