Enrique Moreno. Tax Associate of TOMARIAL
The time of a global pandemic that we are experiencing has become the perfect breeding ground to test the technological improvements inherent in teleworking. Teleworking or remote work is a form of development of the worker's usual work tasks, in his own home or wherever he wishes. The exponential increase in remote work in Spain, marked by the preferential nature determined by Royal Decree 8/2020 (urgent measures to combat COVID-19), crystallized in Royal Decree-Law 28/2020 of September 22, of remote work. In this regulation, articles 11 and 12 develop two areas whose fiscal impact we analyze below, both from the perspective of the employer and the worker:
- The right of the worker to the provision and maintenance of means to carry out remote work (article 11)
- Payment and compensation of expenses incurred by the worker in relation to remote work- (article 12)
As for the workerRegarding the right to the provision and maintenance of the necessary tools for teleworking, we can find two different situations. If the employer gives cash to the worker to acquire the tools (see mobile phones, computers, etc.), the amount received will increase the full income of the work as established in article 17 of the Personal Income Tax Law. If, on the other hand, means acquired by the employer are delivered, who gives them to the worker for their use, we will find ourselves (given the diabolical evidence that, due to historical antecedents, involves demonstrating by the taxpayer the separation between the work and personal use of tools such as computers, telephones or vehicles -the most used example-) before the imputation of private use as income in kind -subject to income on account- for the worker. And the controversial issue resides in how to assess the performance to be integrated into the payroll. Tributes has not yet resolved the issue, and therefore we are facing an unexplored field. The most logical possibility would be the declaration of these transfers as exempt, as well as other types of transfers and uses that are thus contemplated in the Law.
In relation to the delivery from the employer to the worker of an amount to satisfy the payment of these expenses, we can find ourselves with the problem of whether to identify this payment as a performance, or as a mere reimbursement of an expense that the worker has assumed on his own. of the employer. In this last sense we have support from Taxes, which has historically established that it is not appropriate to increase the worker's tax bill if the amount paid by the employer does not exceed the invoice amount of the expenses incurred. However, as in the previous point, it is possible that the legislator declares said payment of expenses as exempt for the purposes of the worker's personal income tax.
From the point of view of the company, everything is much simpler. The expenses incurred (directly or indirectly) will be deductible in your Corporation Tax as long as they meet the universal requirements for the deduction of expenses, such as the accounting registration, the principle of correlation between income and expenses, their nature as necessary as well as having the documentation that proves them.
AND THE TAX RESIDENCE?
What if at the beginning of the confinement, and after the company agreed on the possibility of teleworking, the worker decided to move (temporarily or permanently) to another country? Well, a priori it might seem difficult, but it is simple. The worker will have to abide by the general rules of tax residence and the Agreements to avoid Double Taxation between countries. Thus, in accordance with the provisions of article 9 of the Personal Income Tax Law, it will be necessary to address:
- On the one hand, the stay for more than 183 days, during the calendar year, in Spanish territory.
- On the other hand, that the main nucleus or base of its activities or economic interests resides in Spain, directly or indirectly.
We can summarize it in three recurring situations:
- Company and worker resident in Spain. The usual situation, the worker will present his personal income tax return in Spain for his worldwide income, and the income obtained from the company will be subject to withholding.
- Non-resident company and worker that moves to Spanish territory. The displaced worker, considered a tax resident in Spain, will be taxed by personal income tax for his worldwide income, including the income received from the non-resident company.
- Resident company and worker who travels abroad. In accordance with the provisions of the IRNR (Non-Resident Income Tax), and specifically, its article 5, since the income for work carried out in Spanish territory is not considered to have been obtained, the income will not be taxed in Spain nor will it be subject to withholding in Spain.
In conclusion, in order to determine the fiscal impact of teleworking on the worker, a figure notoriously affected by the Royal Decree-Law, it will be necessary to analyze the form of payment or remuneration / assignment of the tools to be used during remote work, without prejudice to the fact that in the short term, the legislator will rule and declare this type of income exempt or not. We will have to be attentive to the BOE since both the General Director of Taxes and the Director of Tax Management of the Tax Agency have stated that before the end of the year we will have a statement from the DGT itself
