Non-tax deductible expenses

Regulations: Articles 15 and 15 bis LIS  

The following are not considered tax-deductible expenses:

• Those that represent a return on equity

  The remuneration corresponding to securities representing the capital or equity of entities will be considered as equity remuneration, regardless of their accounting consideration. 

  Likewise, the remuneration of equity will be considered to be the corresponding participating loans granted by entities that form part of the same group of companies according to the criteria established in article 42 of the Commercial Code, regardless of residence and the obligation to prepare consolidated annual accounts.

• Fines and criminal and administrative sanctions , the surcharges of the executive period and the surcharge for late declaration without prior request.

• The losses of the game.

• The donations and generosity.

  Expenses for customer or supplier services, expenses incurred in accordance with customs and practices with respect to company personnel, expenses incurred to promote, directly or indirectly, the sale of goods and services, and expenses related to income, are not considered such expenses and are therefore deductible.

  Likewise, all those not expressly included among the above that respond to the same structure and are correlated with the business activity aimed at improving business results, directly or indirectly, present or future, will be considered deductible, provided that they are not intended for partners or shareholders. In this sense, the doctrine established by the Supreme Court in its Judgment number 458/2021, of March 30, (FJ3) of the Second Section of the Administrative Litigation Chamber, issued in cassation appeal number 458/2021 (ROJ: STS 1233/2021).

  However, expenses for customer or supplier services will be deductible up to a limit of 1% of the net turnover for the tax period.

• The costs of actions contrary to the legal system .

• Service expenses corresponding to operations carried out, directly or indirectly with persons or entities resident in countries or territories classified by regulation as tax havens , or that are paid through persons or entities resident in these, except that the taxpayer proves that the accrued expense responds to an operation or transaction actually carried out.

• The financial expenses accrued in the tax period, derived from debts with entities of the group according to the criteria established in article 42 of the Commercial Code, regardless of the residence and the obligation to prepare consolidated annual accounts, intended for the acquisition, from other entities of the group, of shares in the capital or equity of any type of entities, or for the realization of contributions in the capital or equity of other entities of the group, unless the taxpayer proves that there are valid economic reasons for carrying out said operations.

• The expenses arising from the termination of the employment relationship, common or special, or the commercial relationship referred to in article 17.2.e) of the Personal Income Tax Law , or both, even when they are paid in several tax periods, which exceed, for each recipient, the highest of the following amounts:

  1. 1,000,000 euros, or 

  2. The amount established as mandatory in the Workers' Statute, in its implementing regulations or, where applicable, in the regulations governing the execution of judgments, without being considered as such the amount established by virtue of an agreement, pact or contract.

     However, in cases of collective lay-offs carried out in accordance with the terms of Article 51 of the Workers' Statute, or arising out of the causes provided for in paragraph c) of Article 52 of the Statute, provided that, in both cases, they are due to economic, technical, organisational or production reasons or due to force majeure, it will be the amount established with an obligatory nature in the Statute for unlawful dismissal.

• The contributions to social security mutual funds of the entrepreneur or professional that give the right to reduce the taxable base of the taxpayer in accordance with the requirements and limits established for this purpose (article 30.2.1 Law Personal Income Tax ).

  See in this regard, in Chapter 13, the reductions for contributions and contributions to social security systems . See also, in relation to tax-deductible expenses, the specialties of contributions to Social Security Mutual Funds of the businessman or professional that are discussed in this Chapter.