Investing in Spain

A Q&A guide to investing in Spain.

This Q&A gives an overview of the key factors affecting inward investment, including information on the jurisdiction's legal system; key laws and regulatory authorities; investment restrictions; and details of international treaties, customs and monetary unions. The guide also provides information on investor individuals; visa permits; restrictions on foreign ownership; transfer pricing and thin capitalisation rules; imports and import duties; safety regulations and standards for commercial goods and services; structuring and tax incentives; investment guarantees; recent developments and proposals for reform.

To compare answers across multiple jurisdictions, visit the Investing in... Country Q&A tool.

This Q&A is part of the Investing in... Global Guide. For a full list of contents, please visit www.practicallaw.com/investingin-guide.

Javier Olmos and Alejandro Capdevila, Rousaud Costas Duran SLP (First Law International Spain, Member Firm)
Contents
1. How does your jurisdiction compare internationally as a destination for inward investment?

Spain is an attractive destination for foreign investment due to both the possibilities offered by the domestic market and the ease of using it as a base from which to approach international markets.

Spain has a privileged and strategic geographic position as a member of the EU and is a gateway to both North Africa and Latin America (particularly the latter, due to strong economic, historic, and cultural ties).

Spain also has a modern knowledge-based economy, where services represent about 70% of domestic economic activity. It is also a centre of innovation and technological development, with highly skilled young professionals and competitive costs for a Western Europe jurisdiction.

 
2. What types of companies are attracting foreign investment into your jurisdiction and what are the most active sectors?

In the first quarter of 2015, the main sectors that received major investments were:

  • Energy.

  • Real Estate.

  • Manufacturing.

  • Wholesale trade and retail trade.

  • Finance and insurance.

  • Construction.

  • Transportation and storage.

These sectors totalled 73.4% of foreign investments in Spain in the first quarter of 2015. Other sectors made up the remaining 26.6%.

For more information, please visit:

www.comercio.mineco.gob.es/es-ES/inversiones-exteriores/informes/flujos-inversion-directa/PDF/Flujos_Enero_Junio_2015_Directas.pdf

 
3. What will be the main factors affecting the market and how do you expect the market to develop?

According to the National Statistics Institute (INE), the Spanish economy grew 1% in the second quarter of 2015 (source: http://elpais.com/elpais/2015/08/27/inenglish/1440669055_919883.html).

Despite the past few years, the construction and (overall) real estate sectors lost their crucial place in the Spanish economy and consumption levels dropped significantly. The Spanish government, the Organisation for Economic Co-Operation and Development (OECD) and the International Monetary Fund (IMF) predict economic growth for Spain in 2016 (sources:

http://elpais.com/elpais/2016/01/19/inenglish/1453203494_699258.html;

http://ep00.epimg.net/descargables/2015/11/09/396b092f81e808ba66aa533ce7db0e92.pdf).

According to these sources: the key factors that will enable Spain's economic growth during the next two years (2016 and 2017) are the following:

  • Strong job creation, even though most newly-created jobs are temporary.

  • Depreciation of the euro.

  • Low prices for oil and other commodities.

  • Low borrowing rates for businesses.

  • The implementation of significant structural reforms.

This forecast could change due to the political uncertainty in Spain, mainly caused by the outcome of the elections held on 20 December 2015.

 

Legal system

4. Please briefly outline the government and legal system.

Spain has a social democratic state of law, in which the government is a parliamentary monarchy governed by a civil law legal system.

The Head of State is the King, who arbitrates and moderates the day-to-day operation of the country's institutions and represents the Spanish state in international affairs.

Executive power (including internal and external policy, civil and military administration) is exercised by the government. The Council of Ministers (Consejo de Ministros) is chaired by the President and is made up of ministers appointed by the President.

Legislative power is vested in the Parliament (Cortes Generales), which is a dual parliamentary institution made up of the Congress of Deputies and the Senate, and is the supreme representative body of Spanish citizens.

The Spanish legal system has a set of courts whose judges have the power to serve justice on behalf of the King. The organisation and functioning of the Spanish courts are based on the principle of "unity of jurisdiction", distributed in several jurisdictions (civil, criminal, labour and administrative litigation).

The Spanish high courts are mainly the Spanish Supreme Court. However, in some specific matters the high courts can also include the respective Supreme Courts of Justice that are a part of Spain's Autonomous Communities.

 
5. What are the key laws and regulatory authorities governing foreign investment in your jurisdiction?

Royal Decree 664/1999, of 23 April, adapted Spanish legislation to the standards required for the free movement of capital under the Maastricht Treaty. This legislation enabled the inflow of almost all types of foreign investment in Spain. However, there are certain exceptions to this liberalisation (see Question 11).

Enterprises providing foreign investment into Spain must simply notify the Bank of Spain (Banco de España) once the investment has been formalised (notification is only required for statistical purposes). However, there are certain exceptions (for example, investments from tax havens, such as the Cayman Islands, must receive prior authorisation from the Bank of Spain).

The following Spanish laws are applicable to foreign investment:

  • Spanish Law 10/2010 of 28 April, on the prevention of money laundering and terrorism financing. Under this Law, foreign companies investing in Spain must declare the identity of the ultimate beneficial owners (titulares reales) of these companies to the public authorities. The ultimate beneficial owner is the individual who ultimately owned or controlled, directly or indirectly, more than 25% of the capital or voting rights of a legal entity, or by other means exercised control, directly or indirectly, in the management of a legal entity. Companies quoted on a regulated market in the EU or in third countries are not required to declare the ultimate beneficial owner.

  • Bank of Spain (Banco de España) legislation (Circular 4/2012). This establishes the obligation to submit monthly, quarterly and annual notifications of investment transactions (for example, payments and movements of funds in order to execute a purchase of shares or any other asset, acquisitions and loans, among others) carried out during the previous year to the Bank of Spain, if these exceed certain amounts:

    • for transactions equal to or exceeding EUR300 million during the previous year: monthly declarations must be made;

    • for transactions below EUR300 million but equal to or exceeding EUR100 million during the previous year: quarterly declarations must be made;

    • for transactions below EUR100 million during the previous year: an annual declaration must be made.

    Except for the abovementioned, transactions carried out during the previous year do not generally require the entity to notify the Bank of Spain during the subsequent year.

 
6. What international treaty organisations and/or economic, customs or monetary unions or free-trade areas is your jurisdiction a member of?

Spain is a member of the UN and the Council of Europe. As a full member of both institutions, Spain has ratified the main international treaties adopted by both organisations. Spain is also a member of NATO and the EU, and is party to all relevant treaties.

In October 2014, Spain was elected as a non-permanent member of the UN Security Council for 2015 to 2016 (see www.un.org/press/en/2014/ga11570.doc.htm).

Spain is also a party to the World Trade Organisation (WTO) since 1 January 1995.

 
7. What other international agreements apply to foreign investment?

Spain adopted the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1997.

Spain has an extensive tax treaty network as well as several agreements signed on mutual exchange of information.

These treaties are essential for promoting foreign investment, providing legal certainty for investors, and reducing the taxation in relation to their investments.

Finally, Spain has signed agreements for the promotion and reciprocal protection of investments with many countries (Acuerdos de Promoción y Protección Recíproca de Inversiones).

 

Investor individuals

8. Are there any visas, permits or other requirements for foreign individuals entering your jurisdiction for business purposes?

Non-Resident Spanish Identification Number

Foreign nationals interested in investing in Spain must obtain a Non-Resident Spanish Identification Number (Número de Identificación de Extranjeros) (NIE). This can be obtained from the Spanish Police authorities, as well as from diplomatic and consular offices. An NIE provides all foreign individuals with an identification number in order to be able to undertake operations in Spain. This obligation also extends to foreign partners or foreign managers of Spanish companies. The NIE costs EUR10 plus legal fees, and takes around 15 business days.

Residence visa

To support entrepreneurs and international trade, Spanish Law 14/2013 (27 September) introduced a new incentive to attract foreign investment into Spain. This included the introduction of a specific residence visa for investors, entrepreneurs, highly qualified professionals, researchers and employees (Golden Visa).

A Golden Visa is available for investors who make a "significant capital investment" in Spain. Actual residence in Spain is not required. To meet the criteria for "significant investment", the following requirements must be met:

  • An investment of at least:

    • EUR1 million in shares or participations in Spanish companies with real ongoing activity;

    • EUR1 million in deposits in Spanish financial institutions;

    • EUR1 million in Spanish investment funds, closed investment funds or venture capital entities;

    • EUR2 million in Spanish government debt securities; or

    • EUR500,000 of real estate property in Spain.

  • A business project to be developed in Spain that will be considered of general interest in Spain. A business plan will be considered to be of general interest when one of the following requirements is met:

    • job creation;

    • a beneficial socio-economic impact in the geographic area in which the activity will be carried out; or

    • a significant contribution to scientific and/or technological innovation.

  • A foreign visa applicant can also make a "significant capital investment" if:

    • the investment is carried out by a legal entity domiciled in a territory that is not deemed a tax haven country under Spanish law; and

    • the foreign individual owns, either directly or indirectly, the majority of the voting rights and has the power to appoint or remove the majority of the members of the board of directors of such foreign entity.

Residence authorisations

There is a difference between stay permits and residence permits. Stay permits allow foreigners to remain in Spain for a maximum period of three months and are known as "short stay visas". Residence permits allow foreign individuals to remain in Spain for a period of more than three months and are known as "long-term stay visas".

Normally, residence permits involve the obtaining of a work permit. However, there are also other specific residence permits for foreign nationals who wish to reside in Spain for other purposes.

Foreign nationals willing to obtain a residence permit in Spain are not required to make a significant investment. However, if they remain in Spain for the sole purpose of living there (rather than working), they must prove that they have:

  • Sufficient funds to support themselves.

  • Appropriate housing in Spain.

The requirements for the issuing of residence permits can vary according to the type of authorisation and can, in many cases, include having a job offer or a business plan for carrying out a commercial or business activity.

While many of the procedures for obtaining residence and work permits are actioned through the Spanish foreign offices, the visa is obtained through the Spanish consulates in the applicant's country of residence, where an entry visa is issued

After the foreign national arrives in Spain (having obtained the visa granted by the Spanish consulate), the physical permit/card is provided by the Spanish Police authorities, usually within one month of the applicant's arrival in the country. Generally, foreign procedures in Spain are completed in about two months.

 
9. Are there any visa waivers or fast-track procedures available for foreign individuals entering your jurisdiction as investors?
 
10. What are the circumstances under which an individual becomes liable to pay tax in your jurisdiction? Can individuals be liable for tax on foreign-source income?

Under the Personal Income Tax Law (PIT Law), an individual will be deemed as a tax resident in Spain if any of the following conditions are met:

  • More than 183 days per calendar year spent in Spain. The assessment of days effectively spent in Spain must take into account sporadic or occasional absences. The PIT Law and the Spanish tax authorities presume that all absences are sporadic unless and until the individual acquires and delivers due evidence of his tax residency in a country other than Spain. This evidence is generally satisfied by means of a tax residence certificate issued by the tax authorities of the relevant country of residence.

  • However, when a Spanish national (who is tax resident in Spain) transfers his residence to a tax haven, he will continue to be subject to Spanish PIT Law during:

    • the tax period in which the transfer of residence took place; and

    • the four subsequent tax periods.

  • Centre of economic interest located in Spain. The concept of a "centre of economic interest" is not defined by the PIT Law but is understood as the country in which an individual (directly or indirectly) has his main or principal place of business or professional or economic activities, sources of income, place of work, offices, wealth, and so on. The concept embraces a wide range of economic concepts, including:

    • investments;

    • income earned;

    • management head office or headquarters.

  • Centre of vital interest located in Spain. The PIT Law also considers the concept of a centre of "vital interest" in the determination of the tax residence of an individual. However, this criterion is defined in the PIT Law as a rebuttable presumption pursuant to which a person whose non-legally separated spouse and underage dependent children reside in Spain is still considered a Spanish tax resident. Therefore, in a situation where the spouse and the underage children of an individual live in Spain, this presumption would be fully applicable and the individual would be legally considered as a Spanish tax resident, unless the individual could prove otherwise by delivering due evidence of his tax residence in a country other than Spain to the Spanish tax authorities.

Individuals are taxed on their worldwide income. All double taxation treaties to which Spain is a signatory are applicable, as are the mechanisms that the Spanish PIT Law provides for in relation to avoiding double taxation.

 

Investment restrictions

11. Are there any restrictions on foreign ownership and investment in specific industry sectors? Do any formalities, permit or notification requirements apply?

Law 25/2009 (22 December) (Omnibus Law), amended 46 Spanish laws in order to:

  • Adapt the Spanish legislation to Directive 2006/123/EC on services in the internal market (Services Directive).

  • Liberalise access to services activities.

Following the implementation of this directive, new ways of controlling access to services activities were introduced into Spanish law.

The authorisation regime that previously governed access to the various investment activities (ex-ante control) was replaced by a new regime which allowed for a simple communication to be made before the corresponding competent public governmental body informing at the outset of the activity or an affidavit (declaraciones responsables) (ex-post control). This system has already been used in relation to certain activities relating to telecommunications and industrial services. This also applies to domestic investments.

However, certain sectors require prior authorisation from the corresponding competent public governmental body in order to start the investment activity, including in relation to:

  • Banking.

  • The stock market.

  • Investment services companies.

  • Collective investment institutions.

  • Insurance companies.

  • The energy sector.

Certain transactions in the energy sector require prior authorisation under Law 3/2013 of 4 June.

Furthermore, since foreign investment may involve an alteration to the structure of the markets contrary to the provision of fair competition, Spanish and European anti-trust legislation may apply. In such cases, parties involved in the transaction must submit the appropriate notifications to the National Markets and Competition Commission (Comisión Nacional de los Mercados y de la Competencia) (www.cnmc.es) or the European Commission.

 
12. Does the government retain and exercise control over certain industry sectors? If so how?

The participation of regional or state governments in companies is quite limited.

In 1995, Sociedad Estatal de Participaciones Industriales (SEPI) was established as the public entity responsible for managing the government's investments in industrial companies (see www.sepi.es/default.aspx).

The Spanish government therefore retains control in the following sectors:

  • Energy. The government retains a controlling stake (that is, more than 51% ownership, including 100%) in Ensa, Grupo Cofivacasa, Grupo Enusa, Grupo Hunosa, IZAR Construcciones Navales SA en liquidación. The government retains a minority stake (that is, less than 50% ownership) in Enagás, Enresa and Red Eléctrica Corporación.

  • Foreign trade in many sectors ( defence, ports and airports, and so on) . The government retains a controlling stake in Defex and Grupo Navantia. The government retains a minority stake in Hispasat, Indra and Sociedad Estatal España, Expansión Exterior.

  • Food and environment. The government retains a controlling stake in CETARSA, Hipódromo de la Zarzuela, MAYASA, Grupo Mercasa, SAECA, Grupo Tragsa, Alimentos y Aceites and Fundación SEPI.

  • Communications. The government retains a controlling stake in, among others, Agencia EFE, Corporación RTVE, Grupo Correos and Grupo SEPIDES. The government retains a minority stake in International Airlines Group (IAG).

Furthermore, in many cases government control may also be the consequence of a nationalisation process (for example, Bankia).

 
13. Are there restrictions on foreign ownership or occupation of real estate? Do any formalities, permit or notification requirements apply?

As a general rule, there are no specific restrictions on the acquisition of real estate by a foreign national or foreign entity. Foreign investors must therefore comply with the same requirements as any Spanish individual or legal entity.

 
14. Are there any minimum capital requirements for foreign investment?

Minimum capital requirements apply if the investment involves the incorporation of a Spanish company. The Corporate Enterprises Act (approved by Royal Legislative Decree 1/2010, of 2 July, sets out the following minimum capital requirements:

  • For limited liability companies (Sociedades de Responsabilidad Limitada), the minimum share capital must be at least EUR3,000.

  • For joint stock companies (Sociedades Anónimas) the minimum share capital must be EUR60,000. However, although the shares into which the share capital of joint stock companies is divided must be fully subscribed by the shareholders, it is only necessary to pay at least a quarter of the par value of each share by the date of formalisation of the company's deed of incorporation or instrument on capital increase.

 
15. Are there any exchange control or currency regulations? Are there any restrictions on the remittance of profits abroad?

The EU governs the principle of free movement of capital.

Therefore, there are no exchange control or currency regulations for transactions and operations between Spanish citizens and non-residents that involve payments/receipt of payments from outside of Spain.

However, certain transactions require a notification to the Bank of Spain (see Question 5).

Payments made in cash and/or by means of a bearer check cannot be executed between parties for an amount higher than EUR2,500, provided that one party in the transaction is a corporation, businessman or professional.

The amount is EUR15,000 for individuals who both:

  • Prove to be non-tax residents in Spain.

  • Do not execute the transaction as a businessman or professional.

 

Imports

16. Are there any restrictions on the importation of commercial goods?

The rules for the importation of goods are the same throughout the EU.

In general, foreign trade within the EU is governed by the principle of free trade and a previous statistical surveillance is only applied for certain goods (mainly agricultural).

The Community Customs Code establishes rules for the trading of goods between the EU and third countries, including measures relating to:

  • Agricultural policy.

  • Trade policy.

  • Statistical measures.

 
17. What import duties apply to commercial goods?

Within the EU, imports are not subject to customs duties.

In general, value added tax (VAT) applies to the destination country. Imports from outside the EU are subject to VAT and may be payable in accordance with the rates applicable in the EU.

 
18. Are the safety regulations and standards applicable to commercial goods in your jurisdiction compatible with other standards that are recognised internationally?

Royal Legislative Decree 1/2007 of 16 November, approving the revised text of the General Law for the Protection of Consumers and Users (Real Decreto Legislativo 1/2007, de 16 de noviembre, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias) and other complementary laws are applicable.

Since Spain is a member of the EU, the safety regulations and standards applicable to commercial goods are drawn from all the relevant EU legislation, including:

  • Regulation (EC) 2006/2004 on co-operation between national authorities responsible for the enforcement of consumer protection laws.

  • Directive 2011/83/EC on consumer rights, which creates the potential for a real business-to-consumer internal market, ensuring a high level of consumer protection as well as maintaining the competitiveness of companies.

  • Directive 97/7/EC on the protection of consumers in respect of distance contracts.

  • Directive 99/44/EC on the sale of consumer goods (Sale of Consumer Goods Directive).

  • Directive 93/13/EEC on unfair terms in consumer contracts, which establishes the concept of "good faith", whereby the rights and obligations of consumers are balanced with those of sellers and suppliers. Terms deemed "unfair" under the Directive are not binding on consumers.

 
19. Are there any similar or equivalent restrictions on providing services into another jurisdiction?

The Treaty on the Functioning of the European Union (TFEU) establishes the freedom of establishment and the freedom to provide services.

Therefore, the TFEU guarantees the mobility of businesses and professionals within the EU. However, providers of certain professional services, require the homologation of the corresponding certificate (that is, for lawyers, doctors, architects, or for banking and financial activities, and so on). Furthermore, the destination country determines (based on its domestic regulations) the requirements for the provision of services by foreign individuals and foreign corporations.

 

Structuring and tax

20. How is foreign investment into your jurisdiction typically structured? What forms of legal vehicle are attractive to foreign investors?

Corporate enterprises are the main vehicles for structuring investment in Spain. Limited liability companies and joint stock companies are generally used, as these are commercial entities with their own legal and tax status (for minimum capital requirements, see Question 14).

In addition, a special tax regime exists for Spanish holding companies (Entidades de Tenencia de Valores Extranjeros), which is particularly attractive to foreign investors (see Question 25).

The capital requirements for holding companies are the same as for regular companies (see Question 14).

 
21. What are the circumstances under which a business becomes liable to pay tax in your jurisdiction?

Taxation and the applicable regime are determined by the existence of a tax residence in Spain.

Tax residents

For tax resident individuals/entities, the general rule is to tax worldwide income.

Non-tax residents

For non-resident individuals/entities, taxation in Spain is determined by the occurrence of any the following activities:

  • Earning income in Spain.

  • Performing operations in Spain.

  • Ownership (for individuals) and disposal of assets.

Non-resident taxpayers are taxed on their Spanish sourced income as defined in the Spanish Non-Residents Income Tax Law.

 
22. What are the main business tax rates?

Company income tax

The general income tax rate for businesses is as follows:

  • 28% for 2015.

  • 25% for 2016.

The income tax rate for small businesses (less than EUR10 million turnover in the previous financial year), is as follows:

  • 25% to 28% for 2015.

  • 25% for 2016.

The income tax rate for new businesses is as follows:

  • 15% for 2015.

  • 15% for 2016.

The 15% rate for new businesses is applicable during the first tax period in which the company obtains a positive taxable base as well as in the subsequent tax period.

Value added tax (VAT)

The rates for VAT are as follows:

  • The general rate is 21%.

  • The reduced rate is 10%.

  • The super reduced rate is 4%.

There are no specific requirements to qualify for either the reduced tax rate or the super reduced tax rate. The applicable tax rate depends on the product (for example, staple goods such as bread or fruit are subject to the super reduced tax rate).

Transfer tax

The following rates of transfer tax are applicable:

  • The general tax rate for real estate assets is 10%.

  • The general tax rate for movable goods is 4%.

  • The tax rate for pensions, loans and deposits is 1%.

In relation to the above rates, the tax rate may vary depending on the region where the tax is levied.

Stamp duty

Stamp duty is subject to a general rate of 1.5%. However, this rate may vary depending on the region where the tax is levied. An increased tax rate may apply to some VAT-taxable operations.

Capital tax

Capital tax is subject to a general rate of 1%. This tax is mainly applicable to company liquidation and capital reduction operations. Incorporation, capital increase and other corporate restructuration operations (such as mergers and divisions) are not taxable.

Non-resident income tax

The general tax rates for income obtained in Spain by non-residents without a permanent establishment in Spain are as follows:

  • 20% or 24% for 2015. The 20% rate is only applicable to EU resident taxpayers.

  • 19% or 24% for 2016. The 19% rate is only applicable to EU resident taxpayers.

The general tax rate for income obtained in Spain by non-residents with a permanent establishment in Spain, are as follows:

  • 28% for 2015.

  • 25% for 2016.

The tax rate for dividends, interests and capital gains on income obtained in Spain by non-residents without permanent establishment in Spain are as follows:

  • 20% for 2015.

  • 19% for 2016.

 
23. What is the tax treatment in your jurisdiction of profits from an investee company remitted outside your jurisdiction by an investor?

Taxation on dividends and gains realised in Spain by a non-resident individual/entity depends on whether a relevant double taxation treaty (DTT) exists between Spain and the country of residence of the shareholder or transferor.

The following directives are enforceable in Spain:

  • Directive 2011/96/EC (parent company-subsidiary) on the distribution of dividends and on the payment of interests and royalties.

  • Directive 2003/49/EC on interest and royalty payments.

Spain has transposed these directives into national law. These provide for exemptions at source for income gained through the distribution of dividends and the payment of interests and royalties, if the relevant requirements are met.

Spain has also signed various DTTs, which allow efficient distribution of the tax burden as well as the exchange of information between the signatories.

Finally, for residents in countries that cannot enforce EU regulations and do not have a relevant DTT with Spain, the non-resident income tax will apply (see Question 22).

 
24. What transfer pricing and/or thin capitalisation restrictions may apply to investments into your jurisdiction from elsewhere?

The legal framework for related-party transactions is regulated by the Corporate Income Tax Law. This generally reflects the obligations set out in the guidelines from the OECD, including:

  • The arm's-length principle.

  • The obligation to document all related-party transactions (subject to certain limits and conditions).

The Corporate Income Tax Law has severe sanctions for any breach of these obligations.

The Corporate Income Tax Law considers a "related-party transaction" to be any transaction carried out by any of the following connected parties:

  • Companies from within the same group.

  • A shareholder in the company, in which the shareholder holds a 25% or more stake.

  • Two companies owned by the same shareholder, with a minimum participation in one of them of 25%.

  • A company and the members of the board of directors.

In relation to the deduction of financial expenses, the Corporate Income Tax Law includes an anti-abuse clause that:

  • Prohibits the deduction of financial expenses in certain transactions carried out within the same company group structure.

  • Limits the amount of deductible financial expenses to 30% of earnings before interest, taxes, depreciation, and amortisation (EBITDA), applicable to all types of debt. Non-deductible net financial expenses can be deducted in subsequent tax years with the same limit.

 

Incentives

25. What tax incentive or other schemes exist to encourage foreign investment?

Expatriates tax regime

In the tax period in which relocation takes place (and for the next five years), workers who take up residence in Spain under an employment contract can elect to be taxed under the rules applicable to Spanish non-residents, rather than the general provisions of the Personal Income Tax Law.

The main advantages of these rules of taxation can be summarised as follows:

  • The individual is taxed only on his Spanish source income, rather than his worldwide income. An exception to the general rule is employment income which is taxed on a worldwide basis.

  • The applicable tax rates are:

    • for ordinary income (such as salary): 24% on income not exceeding EUR 600,000 and 45% on any income exceeding that amount;

    • for investment income (such as interests, dividends and capital gains): 23%.

The individual is liable to taxation in Spain only on the assets and rights which are located or are enforceable in Spain (that is, real estate assets located in Spain, bank accounts in Spain, shares issued by Spanish companies and so on).

Spanish holding companies

For Spanish holding companies, income obtained from foreign shares, dividends and capital gains is exempt from tax, provided that the participation exemption conditions are met.

Distributions of income from foreign shares, dividends and capital gains made to a non-resident shareholder are not considered income earned in Spain. The same tax regime is applicable to the transfer of shares of a holding company.

Carry-forward losses

Under this regime, losses registered in previous tax years can be used to compensate taxable bases of future periods, with no time limit. This is limited to up to 60% of taxable income prior to this compensation, with a minimum amount of EUR1 million. To qualify for the incentive, accounting records evidencing the existence of the credit must be maintained.

Patent box

This incentive provides a reduction of 60% on net income (the positive difference between revenues and expenses on the intangible subject to assignment) deriving from the grant of use and the transfer of intangibles. To benefit from this incentive:

  • The entity granting the use or transferring the intangible asset must have created or developed the asset with a contribution of at least 25% of its cost.

  • The assignee must use the rights of use or exploitation of the asset in the development of an economic activity.

From 1 July 2016, the basis for the calculation of the 60% reduction will be modified. The reduction will still be 60% but the base will be calculated through the following coefficient:

  • In the nominator: a 30% increased expenses incurred by the assignor which are directly linked to the creation of the asset, including those derived from subcontracting with non-related parties. These expenses cannot exceed the denominator.

  • In the denominator: the expenses incurred by the assignor which are directly linked to the creation of the asset, including the ones deriving from subcontracting and any expenses deriving from the acquisition of the asset.

The Corporate Income Tax Law also establishes two main types of deductions in this field:

  • Research and development. A 25% deduction on the yearly expenditure on research and development and an 8%deduction on the value of the investment in fixed tangible and intangible assets as long as those are exclusively used for research and development activities.

  • Technological innovation. A 12% deduction on the expenditure registered under "technological innovation".

Listed real estate entities

The Corporate Income Tax Law allows an advantageous regime of taxation for listed entities whose business or activity is the acquisition and development of real estate assets for rental purposes. The main advantage of this special regime of taxation is that the entity is taxed at a 0% rate and that the taxation on the company's profits is levied at the level of the shareholders' on the effective distribution of dividends. However, to benefit from this incentive the Corporate Income Tax Law specifies a minimum yearly distribution which must be made.

New entities

Newly created companies can apply a reduced tax rate of 15% for the first year in which they obtain taxable profits as well as the subsequent year, However, this incentive will not be applicable if any of the following applies:

  • The entity is part of a company group.

  • The entity engages in an economic activity previously undertaken by a related individual or entity.

  • The entity performs the same activity undertaken in the previous year by an individual holding 50% or more of the equity of the newly-created company.

Exemption to avoid double taxation

This provides for an exemption from tax on dividends and capital gains for non-resident and resident (from 1 January 2015) companies, provided the following conditions apply:

  • The parent company must hold at least 5% equity in the subsidiary company for at least one year.

  • The subsidiary company must have borne a tax rate of at least 10% and must not be tax resident in a tax haven (such as the Cayman Islands).

 

Investment guarantees

26. What legal guarantees exist against expropriation and/or provide for appropriate compensation? What is your government's track record in this regard?

The Spanish Constitution authorises expropriation for reasons of public utility or social interest (Article 33). The expropriating authority requires a fair valuation of the assets and rights to be expropriated and the payment of the prescribed amount.

In addition, in these situations, agreements for the promotion and reciprocal protection of investments with multiple countries may apply.

 
27. Are there any issues in relation to the enforcement of intellectual property rights?

Intellectual property arises from the moment of creation, without any need to be registered, meaning that protection is automatic. However, it is possible to register the work in the Registry of Intellectual Property (Registro de Propiedad Intelectual) in the case evidence against third parties is required.

 
28. Are there any issues in relation to the gaining and enforcement of judgments and/or arbitral awards?

Since Spain is a member of the EU, Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters will apply in relation to the gaining and enforcement of judgments and/or arbitral awards.

 

Recent developments and proposals for reform

29. Have there been any significant recent or proposed legal developments affecting investors?

The visa for investors, entrepreneurs, highly qualified professionals, researchers and employees is an important development (see Question 9).

The Corporate Enterprises Act is currently under review and a new Commercial Code is being prepared, both of which will undoubtedly affect investors.

 
30. Are there any planned or ongoing treaty negotiations or political developments that could have an impact on your jurisdiction's bilateral relationships with other nations and/or other economic, customs or monetary unions, free-trade areas or markets?

The following are awaiting approval in the EU:

  • Bill on the exchange of criminal history information and consideration of criminal judgments in the EU.

  • The Transatlantic Trade and Investment Partnership (TTIP), a trade and investment agreement, which is being negotiated between the EU and the US. 

 

Main investment organisations

Spanish Institute for Foreign Trade (Instituto Español de Comercio Exterior) (ICEX)

Main activities. Public organisation belonging to the Ministry of Economy and Competitiveness, which promotes investment in Spain by means of providing complete and accurate information about processes, compliance commitments, international markets and Spanish products.

W www.icex.es/icex/es/index.html

W www.investinspain.org/invest/en/index.html

Barcelona Chamber of Commerce (Càmara de Comerç de Barcelona)/Madrid Chamber of Commerce (Camara de Madrid)

Main activities. Consultative and collaborative bodies liaising with the administrations which represent, promote and defend the general interests of companies in their respective regions.

W www.cambrabcn.org

W www.camaramadrid.es/index.php?lang=EN

Catalan Agency for Business Competitiveness (Agència per la Competititivat de l'empresa)

Main activities. Catalan entity that promotes investments inside and outside of Catalonia. It also provides public aid and funding, with a real focus on innovation and technologies.

W http://accio.gencat.cat/cat

W http://accio.gencat.cat/cat/internacionalitzacio/inversio



Online resources

National Commission of Markets and Competition

W www.cnmc.es

Description. Public body that ensures fair competition and regulates all markets and productive sectors of the Spanish economy to protect consumers. Investigates anti-competitive conduct, analyses mergers, prepares draft resolutions with regard to both, and also provides advice to Spanish courts in proceedings related to national anti-trust provisions.

Spanish Institute for Foreign Trade (Instituto Español de Comercio Exterior) (ICEX)

W www.icex.es/icex/es/index.html

Description. Promotes the international expansion of Spanish businesses to support their competitiveness and attract foreign investment.

Spanish Stock Markets National Commission (Comisión Nacional del Mercado de Valores)

W www.cnmv.es/portal/home.aspx

Description. Governmental agency responsible for supervising and inspecting the Spanish stock markets, ensuring transparency and correct pricing within the Spanish market, as well as protecting investors.

Bank of Spain (Banco de España)

W www.bde.es/bde/en

Description. Responsible for supervising the Spanish banking system. As a member of the European System of Central Banks, the Bank of Spain defines and implements the Eurosystem's monetary policy, carries out foreign exchange transactions, promotes the effectiveness of payment systems and issues legal tender banknotes.

Ministry of Industry and Competitiveness (Ministerio de Industria y Competitividad)

W www.mineco.gob.es/portal/site/mineco/

Description. Executes the Spanish Government's economic policies and reforms, and provides funding for research projects in Spain to stimulate technological development, innovation and research within universities and research institutes.

Spanish Confederation of Employers' Organisations (Confederación Española de organizaciones empresariales)

W www.ceoe.es

Description. Private non-profit organisation that defends and represents the interests of employers before public authorities.

Spanish Small and Medium-sized Enterprise (SME) Confederation (Confederación Española de la pequeña y mediana empresa)

W www.cepyme.es/es/portada

Description. Represents SMEs and is nationwide in scope and affiliated to the Spanish Confederation of Employers' Organisations. It is the voice for enterprises and entrepreneurs among Spanish institutions and the EU.

Spanish Patents and Trade marks Office (Oficina Española de Patentes y Marcas)

W www.oepm.es/ca

Description. Public body responsible for the registration of exclusive rights over certain intangible creations protected as "true property rights" (industrial and intellectual property).



Contributor profiles

Javier Olmos, Partner and Head of Energy

Rousaud Costas Duran SLP

T +34 935 034 868
F +34 935 034 869
E jolmos@rcdslp.com
W www.rcdslp.com

First Law International Member Firm (Chambers Global Elite Network)

Professional qualifications. Lawyer, Barcelona, Spain

Areas of practice. Energy; corporate law; M&A.

Non-professional qualifications. Law degree, University of Barcelona; Master's degree in International Trade Law, Barcelona Bar Association; Master's degree in Energy Regulation, Spanish Energy Club; Secretary of the Board of Directors of Factor Energia, SA

Languages. Spanish, Catalan, English

Professional associations/memberships. APPA, Spanish Renewable Energy Association; EolicCat, Catalan Wind Association.

Publications. Author of many publications and articles within his areas of expertise.

Alejandro Capdevila, Tax Partner

Rousaud Costas Duran SLP

T +34 935 034 868
F +34 935 034 869
E acapdevila@rcdslp.com
W www.rcdslp.com

First Law International Member Firm (Chambers Global Elite Network)

Professional qualifications. Economist, Barcelona, Spain

Areas of practice. Tax; international taxation; restructuring; consolidated groups.

Non-professional qualifications. Business Administration Degree, CDES – Abat Oliva – University of Barcelona; Master's Degree in Tax Advice, University of Barcelona; Master's Degree in Taxation, Centre for Financial Studies (CEF)

Languages. Spanish, Catalan, English

Publications. Author of many publications and articles within his areas of expertise.


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