Special tax deferral regime

Contents of the special tax deferral regime and requirements for its application: 

When the amount obtained as a result of the reimbursement or transfer of shares or interests in collective investment institutions is used to acquire or subscribe to other shares or interests in said institutions, the capital gain or loss will not be computed, and the new shares or interests subscribed will retain the value and date of acquisition of those transferred or reimbursed.

This tax deferral regime for the taxation of capital gains is only applicable in the following cases :

1. In the repayment of shares in collective investment institutions that are considered investment funds.

2. In the case of transfers of shares in collective investment institutions with corporate form, provided that they meet the following two conditions:

• That the number of partners of the collective investment institution whose shares are transferred is greater than 500.

• That the taxpayer has not participated, at any time within the 12 months prior to the date of the transfer, in more than 5% of the capital of the collective investment institution.

  For these purposes, the taxpayer must provide documentary evidence of this circumstance to the entities through which the transfer or reimbursement operations and the acquisition or subscription of the shares are carried out.

tax deferral regime is also applicable to partners or participants in collective investment institutions, regulated by Directive 2009/65/EC, of July 13, of the European Parliament and of the Council ⁽¹⁾, other than those established in tax havens or territories considered tax havens, established and domiciled in a Member State of the European Union and registered in the special register of the National Securities Market Commission, for the purposes of their marketing by entities resident in Spain that meet the following requirements:

• That the acquisition, subscription, transfer and reimbursement of shares or interests is carried out through marketing entities registered with the National Securities Market Commission.

• That, in the event that the collective investment institution is structured in compartments or sub-funds, the number of partners and the maximum percentage of participation refers to each compartment or sub-fund marketed.

Note: Directive 2009/65/EC of 13 July of the European Parliament and of the Council, in Article 117, repeals, with effect from 1 July 2011, Directive 85/611/EEC and establishes that references to the repealed Directive shall be construed as references to Directive 2009/65/EC in accordance with the correlation table set out in Annex IV thereof.

Cases in which the tax deferral regime is not applicable

The tax deferral regime is not applicable in the following cases:

1. When the transfer or reimbursement or, where appropriate, the subscription or acquisition concerns shares representing the assets of listed investment funds , that is, those whose shares are admitted to trading on the stock exchange in accordance with the provisions of article 79 of the Regulations of Law 35/2003, of November 4, on collective investment institutions, approved by Royal Decree 1082/2012, of July 13 ( BOE of the 20th), or concerns shares of the so-called listed index variable capital investment company (acronym SICAV listed index), in accordance with the same provision.

The deferral regime is also not applicable in the case of participants in Bank Asset Funds, in accordance with the provisions of the Seventeenth Additional Provision of Law 9/2012, of November 14, on the restructuring and resolution of credit institutions.

2. When, by any means, the amount derived from the reimbursement or transfer of shares or interests of collective investment institutions is made available to the taxpayer.