A few months ago we analysed judgement 875/2023 of 27th June (action 6442/2021) of the Supreme Court, which addressed the question of the deductibility of the remuneration received by company directors in those cases in which the remunerated nature of the position of director is provided for in the company bylaws, but there is no resolution of the general meeting approving such remuneration. What was discussed, in essence, was whether the lack of specification of the maximum amount of the remuneration by the general meeting (as required by Article 217.3 LSC – Spanish Companies Act) led to the classification of the remuneration received by the directors as mere liberalities for the purposes of Article 14.1.e) of the TRLIS (consolidated text of the Corporate Tax Law), and, therefore, as non-deductible expenses for corporate income tax purposes.
This question, of great interest for the corporate taxpayer, and in our opinion very appropriately clarified by the court, has been analysed once again by the Supreme Court in its ruling 75/2024 of 18th January 2024 (action 4378/2022), which confirms the line of case law established in the aforementioned ruling.
The case examined in the ruling of 18th January 2024 is very similar to that of the ruling of 27th June 2023, with the exception that in the latter case the company was a sole partner company, a fact which, as could not be otherwise, led the court to rule that a resolution of the general meeting fixing the amount of the remuneration is not required, since it is a non-existent body in companies of this type.
To defend the non-deductibility of this expense, the State Attorney calls upon Supreme Court Ruling 98/2018, of 26th February (action 3574/2017), which sets out the three levels through which the system for determining the remuneration of directors is structured in the Spanish Companies Act: (i) the first level is the company’s bylaws, which must establish whether the position is remunerated or not; (ii) the second level are the resolutions of the general meeting, which must establish the maximum amount of remuneration; (iii) and the third level are the decisions of the directors themselves, who -unless the meeting determines otherwise- are responsible for distributing remuneration among the various directors according to their functions and responsibilities.
To resolve the issue raised in the judgment of 18th January 2024, the court rejects the arguments of the State attorney and resorts to the approach of the case law set forth in the judgment of 27th June 2023, which can be summarised as follows:
1) Remuneration received by company directors that is recorded, accredited and provided for in the company bylawsdoes not constitute a non-deductible liberality for the purposes of article 14.1.e) of the TRLIS because the relationship linking the recipients of the remuneration with the company is of a commercial nature or because the remuneration has not been approved by the general meeting.
2) If the company consists of a sole partner, the approval of the maximum amount of the remuneration by the general meeting is not required.
3) Even if that requirement were legally enforceable, failure to comply with it cannot automatically result in the expense being regarded as a gratuitous expense and in it not being deductible.
Thus, the High Court understands that payments with a valuable consideration never constitute liberalities, insofar as (i) their legal and economic cause is onerous, not gratuitous; (ii) remuneration is paid for effective services; and (iii) such services are recorded, accredited and provided for in the bylaws.
Even in the event that a commercial irregularity has been committed, the absence of a resolution by the general meeting does not mean that the directors’ remuneration is treated as a non-deductible liberality for corporate income tax purposes. The contrary would be a transformation into something that is no longer fiscal or commercial, but purely contractual, since the relationship between the directors and the company is onerous and does not lose its status as such in any case.
Finally, the court found that there is no legal basis for refusing the deductibility of the tax expense on the sole ground of an alleged infringement of commercial law, which, even if it had occurred – for argument’s sake- would have occurred without harming anyone.
Joan Lluís Rubio
Vilá Abogados
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8th March 2024
