New regulations for 2022

Main tax changes introduced by Royal Decree-Law 18/2022, of October 18, approving measures to strengthen the protection of energy consumers and contribute to the reduction of natural gas consumption in application of the "Plan + security for your energy (+SE)"

por el que se aprueban medidas de refuerzo de la protección de los consumidores de energía y de contribución a la reducción del consumo de gas natural en aplicación del "Plan + seguridad para tu energía (+SE)", así como medidas en materia de retribuciones del personal al servicio del sector público y de protección de las personas trabajadoras agrarias eventuales afectadas por la sequía.(BOE, 19-octubre-2022)

CORPORATION TAX

1. The following amendment is introduced to Law 27/2014 on Corporate Tax:

   • Freedom of amortization on investments that use energy from renewable sources

     Article 22 of Royal Decree Law 18/2022 introduces a new seventeenth Additional Provision in Law 27/2014, of November 27, on Corporate Tax, by which taxpayers may freely amortize the investments made in facilities intended for the self-consumption of electrical energy , as well as those facilities for thermal use for own consumption , provided that they use energy from renewable sources and replace facilities that use energy from non-renewable fossil sources and that are made available to the taxpayer as of the entry into force of Royal Decree-Law 18/2022 (October 20) and come into operation in 2023.

     They will be freely amortized in the tax periods that begin or end in said year, provided that, during the 24 months following the start date of the tax period in which the acquired elements come into operation, the total average workforce of the entity remains the same as the average workforce of the previous twelve months.

     However, buildings will not be eligible for the freedom of depreciation regulated in this provision.

     The maximum amount of the investment that may benefit from the free amortization regime will be 500,000 euros .

     Entities to which the tax incentives for small companies provided for in Chapter XI of Title VII of Law 27/2014 of 27 November on Corporate Income Tax apply may choose between applying the free amortisation regime provided for in Article 102 of this Law or applying the free amortisation regime regulated in this provision.

2. With effect for the tax periods that begin on or after January 1, 2022 , the following modifications are introduced to Law 27/2014 of the Corporate tax:

   • Organisations in the income allocation scheme that are subject to Corporation Tax

     The second Final Provision of Royal Decree Law 18/2022, modifies section 2 of article 6 of Law 27/2014, of November 27, on Corporate Tax, in such a way that entities under the income attribution regime will not pay Corporate Tax, with the exception of those to which section 12 of article 15 bis of Law 27/2014, of November 27, on Corporate Tax, is applicable.

     In this way, through the modification of Law 27/2014, on Corporate Tax, the mandate of article 9 bis of Directive (EU) 2016/1164 is incorporated into the articles of said Law with the purpose that certain entities under the allocation of income located in Spanish territory does not give rise to a hybrid asymmetry, to this end these entities become taxpayers of Corporate Tax when the conditions are met and with respect to certain income that could generate a hybrid asymmetry with third countries. Taking into account the above, the entity under the income attribution regime that gives rise to the aforementioned hybrid asymmetry is obliged to comply with the accounting and registration obligations that correspond to the method of determining its income, including those that are taxed according to this Tax.

   • Incorporation of a new case of Hybrid Asymmetry into the Corporate Tax Law

     The second Final Provision of Royal Decree Law 18/2022, adds a new section 12 to article 15 bis of Law 27/2014, on Corporate Income Tax, with the current sections 12 and 13 being renumbered as sections 13 and 14, respectively. With this new section, the mandate of article 9 bis of Directive (EU) 2016/1164, in the wording given by Directive (EU) 2017/952, with regard to hybrid asymmetries with third parties, is transposed into the Spanish legal system. countries, in the case of inverted hybrid asymmetries, forcing Member States to treat fiscally transparent entities as residents that are considered by the legislation of the countries of residence of their majority shareholders as entities subject to personal income tax for avoid a situation of hybrid asymmetry in which certain income is not taxed in any country or territory, that is, it is not taxed either at the headquarters of the entities under the income allocation regime or at the headquarters of its participants or the entity paying said income. .

     Thus, an entity under an income attribution regime in which one or more entities, linked to each other, participate directly or indirectly on any day of the year, in the capital, in the own funds, in the results or in the voting rights in a percentage equal to or greater than 50 percent and are residents in countries or territories that qualify the entity under the attribution regime as a taxpayer for a personal income tax, will pay corporate tax , as a taxpayer, for certain positive income that corresponds to all participants residing in countries or territories that consider the entity in attribution of income as a taxpayer for personal income taxation .

     The tax period will coincide with the calendar year in which such income is obtained. The rest of the income obtained by the entity through the attribution of income will be attributed to the partners, heirs, co-owners or participants and will be taxed in accordance with the provisions of Section 2 of Title X of Law 35/2006, of November 28, on Personal Income Tax and partial modification of the laws on Corporate Tax, Non-Resident Income Tax and Wealth Tax.