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A Spanish company has requested a ruling on the taxation of payments made to a non-managing participant resident in Switzerland following the liquidation of a joint account agreement (cuentas en participación) for a real estate business. The Directorate General for Taxes (DGT) has determined that these payments constitute interest and, pursuant to the Double Taxation Convention with Switzerland, are taxable only in the beneficiary's country of residence.
Question raised: At the time of settlement, is the payment to the non-managing participant subject to withholding tax in Spain? What is the classification of that income?
La renta obtenida por el partícipe no gestor se encuadra en el concepto de intereses del artículo 11.2 del Convenio España-Suiza, al ser la contraprestación por la cesión de capitales propios. Al tratarse de intereses, según el Convenio, solo pueden someterse a imposición en el Estado de residencia del beneficiario (Suiza). Por tanto, no procede practicar retención en España, aunque se debe cumplir con la obligación de presentar declaración negativa.
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