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V5485-16 30 December 2016 · SG de Tributación de las Operaciones Financieras Criterion in force
IRPF · régimen de diferimiento

Differment by reinvestment applicable in foreign IICs if distributor acts as exclusive intermediary

A credit institution queries whether its clients can apply the reinvestment deferral regime in foreign IICs when securities are held in a foreign account. The DGT examines whether the requirement of operating 'through' a registered distributor with CNMV is met.

The question raised

Question posed: Application in the case presented of the deferral regime for reinvestment between holdings and shares of collective investment institutions provided for in Article 94 of Law 35/2006, on Personal Income Tax.

The DGT's ruling

To apply the deferral provided for in Article 94 of the Personal Income Tax Law (LIRPF), transactions must be carried out through marketing entities registered with the CNMV. This requires the taxpayer to direct the order to the marketing entity and for said entity to act as the primary, necessary, and exclusive intermediary. In cases of foreign custody, the deposit account agreement must provide for the direct intervention of the marketing entity, preventing transactions without its express mediation. Furthermore, the substitution of the marketing entity by another registered with the CNMV must be provided for in order to maintain the tax benefit.

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