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Practical guide for completing census form 036

List of partners, heirs, members or participants

It should be noted that when requesting the assignment of the provisional NIF , in addition to checking the corresponding box on the census declaration form 036, the “List of partners, heirs, members or participants” of said form must be completed.

To this end, Article 7 of RGAT establishes that, with respect to entities resident or incorporated in Spain, the following additional data will be included in the Census of Businessmen, Professionals and Withholders:

  1. The registered office, where it exists and is different from the tax address, and the cadastral reference of the property.
  2. The closing date of the financial year.
  3. The legal form or type of entity involved.
  4. The name and surname or company name or full name, tax identification number and tax address of each of the partners, members or founding participants or those who promote its incorporation. The same data shall also be recorded, except for entities that have the status of communities of owners constituted under a horizontal property regime, for each of the members or participants that form part, at any time, of the entities referred to in article 35.4 of Law 58/2003, of December 17, General Tax Law, indicating their participation quota and attribution in the event that said quotas do not coincide. In the event that partners, members or participants are not residents in Spain, their tax residence and the identification of their tax representative in Spain, if applicable, must be stated.

Therefore, the founding partners of an entity that is established in Spain, regardless of whether it is a taxpayer of Corporate Tax or an entity in attribution of income, must have their own NIF, whether they are Spanish or foreign, EU or non-EU partners.

However, legal persons and entities subject to Corporate Tax, created for the specific purpose of transferring securities representing equity to third parties, must report within one month of their transfer any changes that have occurred with respect to the data recorded in previous declarations, including those relating to member or participating partners, even if they have a definitive NIF at the time of the transfer.

On the other hand, although section 4 of article 8 of the RGAT states that “in the case of entities under an income attribution regime with a presence in Spanish territory, in accordance with the provisions of article 38.2 of the Revised Text of the Non-Resident Income Tax Law, approved by Royal Legislative Decree 5/2004, of March 5, the Census of Businesspeople, Professionals and Withholders must include the name and surname or company name or full name, tax identification number, tax domicile and nationality of each of the members or participants of said entity, indicating their participation and attribution quota”, it is considered that such data only needs to be included in respect of its members or participants resident in Spain.

Entities with legal personality must report changes relating to partners, members or shareholders until they are registered in the corresponding registry and obtain the definitive tax identification number. However, entities without legal personality must report these variations even if they have obtained a definitive tax identification number, unless they have the status of communities of owners established under a horizontal property regime and are included in the Census of Businesspeople, Professionals and Withholders (article 12.2 of the RGAT).

The fact that the NIF is required of the partners who promote the incorporation of a company and not the variations related to them that occur once the company obtains the definitive NIF has its reason for being in that the definitive NIF is assigned to the company when it justifies its registration in the Commercial Registry, at which time it acquires its legal personality and can act in commercial transactions vis-à-vis third parties, as an entity distinct from the persons of the partners.

Furthermore, the founding partners are jointly and severally liable for the acts and contracts entered into on behalf of the company before its registration in the Commercial Registry, therefore, it is logical that it is necessary to identify them for tax purposes, at least until the time when the company acquires its own legal personality.