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V3805-15 1 December 2015 · SG de Tributación de las Operaciones Financieras Criterion in force
IRPF · participaciones preferentes

Rectification of tax returns due to the nullity of preferred shares and the tax treatment of statutory interest

The taxpayer inquires about the tax treatment regarding the refund of interest from preferred shares declared null and void, as well as compensatory statutory interest. The DGT indicates that a rectification of tax returns may be requested even if the right to a refund has expired, and that statutory interest must be taxed as capital gains.

The question raised

1. Tax implications in Personal Income Tax regarding the declaration of nullity, concerning the refund of gross interest from preferred shares, as well as the receipt of legal interest recognized by court judgment and paid by the banking entity.

The DGT's ruling

Interest from preferred shares declared null and void must be taxed as income from movable capital, allowing for the rectification of tax returns and the refund of undue payments even if the right has prescribed. Legal interest resulting from the nullity is compensatory in nature and is taxed as capital gains included in the savings tax base. Procedural default interest also constitutes independent capital gains. Legal expenses cannot be accounted for as capital losses as they are considered consumption expenses.

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