I. Introduction
Pursuant to Law 16/2012 of 27th December, an important modification to article 43 of Law 35/2006 of 28th November on Personal Income Tax and a partial modification of the laws on Corporate Tax, Non-Resident Income Tax and Wealth Tax have been made, effective as of 1st January 2013. The referred to modification establishes a new rule for calculation in the assignment of dwellings to employees by an employer company when said dwellings are the property of a third party.
II. Modification to the calculation rule
Before the modification, said article 43 of the Personal Income Tax Law previously stipulated that for the calculation of remuneration in kind, 10% of the rateable value of the property should be taken (5% for revised values). Nevertheless, the new drafting is intended to be more precise and in line with the amounts effectively paid by the company, and point 1.1.d) sets forth a series of employment earnings in kind which shall be valued in relation to the cost for the payer, including any taxes imposed on the operation. Amongst said earnings in kind the use of a dwelling, which is not the property of the payer, is included.
This means that for those companies who rent properties for the use and benefit of its employees, thus constituting a payment in kind, such remuneration shall be quantified by the cost of the rental assumed by the employer.
Likewise, and in order to avoid obviously low rental prices being agreed, the law adds that, in any case, the resulting valuation may not be lower than the value obtained having applied what is stipulated in letter a) of number 1º of article 43, that is to say 10% of the rateable value of the property.
It should be pointed out that during the 2013 tax period, employment earnings in kind derived from the use of a dwelling which is not the property of the payer may continue to be evaluated in accordance with what is stipulated in letter a) of number 1º of article 43 of this Law in its text in vigor at 31st December 2012, provided that the employer was already making such payments for the dwelling prior to 4th October 2012.
The objective of Law 16/2012 is fiscal consolidation, and in this sense various measures have been adopted amongst which the above measure is included. This measure is intended to quantify the real remuneration in kind for the employee, and the consequent benefit received by the latter, thus accurately evaluating the effective remuneration in kind. This new way of quantifying payment in kind for the rental of dwellings for employees should be taken into account by companies in order to avoid irregularities.
Vilá Abogados
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11th of January 2013
