I.- INTRODUCTION
On 30th October 2012, Law 7/2012 dated 29th October regarding the modification to tax and budgetary regulations as well as the adaptation of financial regulations for the stepping up of actions in the prevention and fight against fraud was published in the Spanish Official State Gazette. Said Law, which entered into force the day after its publication, modifies, amongst others, article 108 of the Securities Market Act (“SMA”) 24/1988 of 28th July.
II.- MODIFICATION TO ARTICLE 108 OF THE SMA
Before the modification, the first epigraph of article 108 of the SMA stipulated that the transfer of participations and/or shares, whether admitted to negotiation in an official secondary market or not, are exempt of Value Added Tax (“VAT”) and Tax on Capital Transfers and Documented Legal Acts (“TCT).
As an exception, up until now the second epigraph of the same article stated that the transfer of securities shall not be exempt of VAT or TCT when the securities or transferred or acquired shares in a primary or secondary market represent aliquot parts of the share capital of companies where at least 50% of their assets are composed of real estate property located in Spanish territory, or the assets include securities which may allow the company to exercise control over another entity with identical characteristics.
With the modification introduced by Law 7/2012 the transfer of participations and/or shares in a secondary market (thus eliminating transfers in primary markets) shall be subject to the tax corresponding to an onerous transfer of real estate property “where transfers of securities may be intended for the evasion of the payment of the tax imposed on the transfer of real estate properties belonging to the entities representing said securities”. In summary, except where there is proof to the contrary, it is presumed that actions are taken with the intention of evasion when obtaining the control of an entity with at least 50% of its assets being real estate properties situated in Spain and which are not used for commercial or professional activities. The aforementioned shall also be applicable when obtaining the control of an entity, which in turn exercises control over another entity with the characteristics stated above.
III.- CONCLUSION
With the referred to modification, the drafting of article 108 of the SMA has been simplified and has changed from being an objective regulation to an anti-evasion regulation which admits proof to the contrary.
Vilá Abogados
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17th of December 2012
