Tax treatment of the gratuitous usufruct of company shares

The Dirección General de Tributos (DGT) has issued a relevant ruling regarding the tax nature of establishing rights of use or enjoyment over company shares. The inquiry analyzes the consequences for Personal Income Tax (IRPF) when this operation is carried out free of charge.

What the DGT has ruled

The advisory body determines that the establishment of rights of use or enjoyment over company shares is classified as income from movable capital, in accordance with article 25.1.c) of the LIRPF. As it is an operation carried out free of charge, the presumption of remuneration established in article 6.5 of the LIRPF comes into play.

This implies that the administration considers that remuneration exists; therefore, the operation must be valued according to the normal market value, as provided in article 40.1 of the current regulations. Likewise, the DGT emphasizes that proving the gratuitous nature of the operation is a matter of fact that must be proven by the taxpayer themselves.

What it means for you

If you are the holder of company shares and decide to establish a usufruct over them without receiving economic consideration, you will not be exempt from taxation. The regulations presume that remuneration exists, which obliges you to include the market value of said usufruct in your IRPF taxable base as income from movable capital.

This impact directly affects the holder of the shares. The burden of proof lies with the taxpayer, who must reliably demonstrate the absence of remuneration if they wish to avoid the application of the Administration's presumption.

What should be done

In the event of an operation of this nature, it is necessary to consider the following points:

• Precisely determine the market value of the rights of use or enjoyment being established.
• Have documentation available that allows for the accreditation of the reality of the operation and its gratuitous nature in the event of a possible inspection.
• Assess the tax impact that the inclusion of this income will have on the Income Tax return.

Given the complexity of the valuation and the presumption of remuneration, it is fundamental to analyze each particular situation to ensure compliance with tax regulations.