No employment relationship means no exemption for subsistence allowances for managing partners

The Directorate General of Taxes (DGT) has issued a relevant ruling regarding the taxation of subsistence allowances received by managing partners. The inquiry focused on whether a sole managing partner, registered in the Special Regime for Self-Employed Workers (RETA), could benefit from the exemption for subsistence expenses when performing actual technical functions, regardless of their administrative position.

What the DGT has ruled

The body has ruled that the exemption provided for in Article 9 of the Personal Income Tax Regulations (RIRPF) applies exclusively to those taxpayers who receive employment income derived from an employment relationship. In the case analyzed, the Administration establishes that the requirements of dependency and alterity necessary to constitute an employment link are not met.

Therefore, although the allowances are not paid for the exercise of the position of administrator, but for the effective provision of technical services, the absence of an employment relationship prevents the allowance and assignment regime from being operational for tax exemption purposes. Consequently, the exemption of 91.35 euros per day for travel to foreign territory that the inquirer intended to apply is not applicable.

What this means for you

This ruling has a direct impact on managing partners operating under the self-employed regime (RETA) who receive employment income for services rendered to their own company. If you receive subsistence allowances abroad, you must take into account that:

• Mere documentary justification of the technical activity or the travel does not substitute the need for an employment relationship for the exemption.
• Amounts received as subsistence must be included in the Personal Income Tax (IRPF) taxable base as employment income, without the possibility of applying the 91.35 euro daily exemption.
• The company cannot apply this exemption in its accounts for these specific profiles.

What should be done

Given this situation, it is necessary to assess the nature of the income received and the structure of the relationship between the partner and the company. Each scenario requires a detailed analysis of the documentation and the legal reality of the provision of services to determine the correct tax treatment and avoid contingencies with the Tax Administration.