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V3205-14 28 November 2014 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IRPF · aportación no dineraria

Special regime for non-monetary contributions applicable when contributing shares of a community of property

A taxpayer has enquired whether the special regime for non-monetary contributions can be applied when contributing rural estates held by a community of property to a company. The Directorate General of Taxes (DGT) has ruled that this is possible provided the requirements of the Corporate Income Tax Law are met, noting that the community of property must maintain its own accounting records.

The question raised

Whether it is possible to apply, to the capital gain generated in the Personal Income Tax in 2014 by the contribution, the reduction coefficients of the ninth transitional provision of the Personal Income Tax Law. Whether receiving a retirement benefit and not contributing to Social Security constitutes sufficient evidence to consider the taxpayer and/or his spouse as non-entrepreneurs for Personal Income Tax purposes.

The DGT's ruling

The contribution of ideal shares of a community of property may qualify for the special regime under Article 94 of the TRLIS if the requirements of entity residence, minimum participation of 5%, and allocation to economic activities are met. The obligation to maintain accounting records according to the Commercial Code rests with the community of property and not with the individual co-owners. It is not necessary for the books to be legalized in the Mercantile Registry, provided that the accounting complies with Article 25 of the Commercial Code. The motives of the operation are considered economically valid to avoid the fraud regime.

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