The reader interested in investing in equities will want to know that there are certain capital losses that cannot be computed at the time of transfer of the asset. One of the cases par excellence is that of capital losses derived from certain transfers of securities admitted to trading. Through this tool, the legislator seeks to prohibit the integration of capital losses, as long as the taxpayer's assets remain constant, in such a way that the divestment that, in principle, entails the transfer of an equity element is replaced with the acquisition, in a certain time period, of those same patrimonial elements or other homogeneous ones.
Consequently, the resulting capital loss may be integrated as the subsequent transfers of the assets that were repurchased occur, regardless of whether these determine capital gains or losses.
La Law 35/2006, of November 28, on Personal Income Tax and the partial modification of the laws on Corporation Tax, Non-Resident Income and Equity, by regulating the repurchase term, establishes an important distinction, the analysis of which is the object of this article. Thus, in the first place, those derived from the transfer of securities or shares admitted to trading on any of the official secondary securities markets defined in Directive 2004/39 / EC of the European Parliament and of the Council of 21 February will not be counted as capital losses. April 2004 regarding the financial instrument markets, when the taxpayer has acquired homogeneous values within the two months before or after said transfers. However, in the event that the securities or participations are not admitted to trading in said markets, the period established to compute capital losses passes to one year before or after the transfers.
In order to analyze the interpretation made by the General Directorate of Taxes (DGT) of the aforementioned precepts, we must resort to binding consultations and their conciliation with the principles that govern European regulations on the matter, especially the free movement of capital ( Articles 63 to 66 of the Treaty on the Functioning of the European Union).
Let's take Binding Consultation 0515-16 as an example, in which it is proposed whether the term of 2 months or the term of 1 year, before or after the transmission, would be applicable, for the purposes of the provisions of letters f) and g) of section 5 of article 33 of Law 35/2006, in relation to capital losses derived from the transfer of shares in the United States market. The DGT establishes, in response to the aforementioned query, that, in the case at hand, given that the shares transferred are listed on a United States market, letter g) of article 33.5 of the LIRPF will be applicable and the period for not The repurchase of said securities will occur for one year before or after the transfer of the shares.
Well, once the criteria of the aforementioned advisory body have been established, it is important to analyze the particular situations and the legal consequence derived from them. There are countless listed companies that are admitted to trading on organized markets in Europe and in various third countries, the sole purpose of this mechanism being to facilitate access to assets to as many investors as possible from all over the world. It is clear that investment in a share of any entity, regardless of the market in which the transfer is made, grants comparable rights in the shareholder / company relationship. Therefore, we are faced with objectively equal legal situations that deserve equal treatment in the law. In any case, the existence of a difference in treatment must, necessarily, be sufficiently motivated by the legislator, avoiding situations of inequality that are arbitrary, a situation that should not occur in the rule of law in which Spain is constituted pursuant to article 1.1 of the Spanish Constitution.
Remember this situation to that not so distant ruling of the Supreme Court (nº 242/2018, of February 19), in which it was established, in relation to Inheritance and Donation Tax, that no differences in treatment can be established between residents in community territory and non-residents outside the community, by virtue of the principle of the free movement of capital. Are we not facing the same scenario with regard to the non-computable losses derived from the transfer of shares of the same entity? Offering different legal consequences to identical situations (transfer of the participation in the same entity) depending on the market where said participations are traded should be treated as a restriction on capital movements, which would inevitably entail a violation by the national law of the Article 63 of the Treaty on the Functioning of the European Union, insofar as it arbitrarily restricts, without any justification, the movement of capital between community and non-EU territory.
Equally relevant is the preamble to Law 11/2021, of July 9, on measures to prevent and fight tax fraud, which establishes the standardization of the treatment of investments in certain collective investment institutions, known as funds and listed investment companies (ETFs), regardless of the national or foreign market in which they are listed. Thus, the treatment of those listed on the Spanish stock exchange is extended to listed collective investment institutions that are listed on the foreign exchange regarding the non-applicability of the deferral regime. This initiative evidences, by contrast, the difference in treatment received by securities and shares depending on the market in which they are admitted to trading.
In summary, in the author's opinion, there is sufficient information on the interpretation that must be made of Community law in relation to the free movement of capital to consider a possible violation of said principle by Spanish regulations in relation to non-computable losses derived from the transfer of securities or shares not admitted to trading on any of the secondary markets defined in Directive 2004/39 / EC.
Yoviyan Penev
Tomarial Tax Area Collaborator
