Newsletter 28 warned that the ambiguous wording of the Regulations [1]
developing the new anti-tax fraud reporting requirements passed by Law
7/2012 of 29 October 2012 could lead to the conclusion that the
reporting obligation also applied to shares and units issued by foreign
Collective Investment Undertakings (“CIUs”) “located” (situadas)
in Spain, regardless of whether the shares or units were deposited in
Spain.
Our previous newsletter highlighted the need for the Tax Authorities
to clarify as soon as possible the scope of the obligation to report on
any assets and rights located or deposited outside Spain through form
720, specifically, in relation to shares or units issued by CIUs located
outside Spain.
Now, and in this regard, the Spanish General Tax Directorate has
issued ruling V0741-13, stating that the above mentioned reporting
obligation “does not apply to any shares or units which ownership is
channeled through a distributor located in Spain or through a
representative in Spain of a management company acting under the freedom
to render services regime, provided that these shares or units remain
registered by their owners in those distributors or representatives
of the management company” (underlying added by us).
The rationale behind this interpretation is the fact that when the
distribution is carried out through any entity located in Spain or under
the freedom to render services regime, these entities assume before the
investors and the Tax Authorities a relevant position that implies that
they are subject to compliance with certain tax obligations to the same
extent as any other management company or any other reporting agent with
respect to CIUs issued in Spain. In this regard, the Tax Authorities
consider that any reporting obligation by the investor is already
“covered by the reporting obligations imposed on the distributor or
representative in Spain of the management company”, as it was already
argued in our last newsletter.
[1] Order HAP/72/2013 of 30 January 2013 approving
the new tax return form 720 and Royal Decree 1558/2012 of 15 November.
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