[POST ACTUALIZADO EL 13 DE NOVIEMBRE DE 2017]
Last August, Order HFP/816/2017 was published in the BOE, for taxpayers with operations related to and related to tax havens. Under this standard he created the Form 232 of informative declaration. In today’s article we will elaborate on the changes that have occurred in this statement.
Treasury Form 232: What is it? Fundamental concepts
The form 232 of the Treasury is a declaration by which, some taxpayers must report to the Tax Agency of certain related operations and situations related to countries or territories called “tax havens”.
The deadline to submit form 232 for the year 2016 is November 30.
This presentation must include all related information about those tax periods that began on or after January 1, 2016.
This information until 2015 was presented through Form 200 of Corporation Tax,within the section for related transactions and operations with tax havens.
To know who is required to submit this model, it is necessary to understand what is a related person or entity and what is a tax haven.
1. Related person or entity
They are those mentioned in article 18.2 of the Corporate Tax Law Law 27/2014 of November 27. The following persons or entities are included as linked:
- An entity and its partners or participants, who have a stake equal to or greater than 25%.
- An entity and its directors or administrators (except in what it perceives for the position of administrator).
- An entity and the spouses or relatives of the partners, directors or administrators, who are related up to the third degree (great-grandparents, uncles, nephews or great-grandchildren).
- Two entities belonging to the same group.
- One entity and the directors or administrators of another, when both belong to the same group.
- An entity and another entity directly or indirectly owned by at least 25% of the capital.
- Two entities in which the same partners, spouses or their relatives up to the third degree, own at least 25% of the share capital.
- An entity resident in Spanish territory and its permanent establishments abroad.
So that there are no doubts, we suggest you review the aforementioned article of the Corporate Tax Law, in the following link.
2. Tax Havens
We must understand which are territories or countries that for Spain constitute “tax haven”, forthe purposes of the presentation of the model of linked transactions.
To do this, a first approach would be to go to the countries and territories mentioned in Royal Decree 1080/1991. There are, among many others: Gibraltar, British Virgin Islands, Seychelles or Isle of Man.
Seeing all the complexity and the innumerable doubts that the presentation of Form 232 can entail, in AYCE LABORYTAX we put at your disposal a complete questionnaire to analyze the possible operations forced to declare.
Who is required to file Form 232?
Basically the persons obliged to declare form 232 are the taxpayers of the Corporation Tax,taxpayers of the Income Tax of Non-Residents (IRNR) with permanent establishment in Spain, and all entities under the regime of attribution of income constituted abroad with presence in Spanish territory, when the aforementioned carry out some of the operations included.
Cases EXCLUDED from the obligation to file Form 232
- Transactions carried out between entities belonging to the same tax consolidation group, without prejudice to the provisions of article 65.2 LIS, in relation to the obligation to document and report on the transfer of certain intangible assets.
- Transactions carried out between members or entities of the same fiscal consolidation group, by economic interest groups and temporary unions of companies, as well as collaborative formulas analogous to temporary unions, under the regime established in Article 22 of the LIS.
- Transactions carried out within the scope of public offers for sale or public offers for the acquisition of securities.
What information should be included in Form 232?
It will be necessary to include information on both the income and payment operations, separately and without compensation between them. Transactions shall be grouped by the different types, provided that the same valuation method has been used. If different methods have been used, the information will also have to be offered in different lines.
Data to include:
- NIF of the taxpayer or the related entity.
- Natural or legal person.
- Name and surname or the business name of the person or entity linked.
- Type of link according to article 18.2 of the Corporate Tax Law.
- Code of the province, provided that the person or entity linked is within Spanish territory and has Spain as a country of residence.
- Type of operation.
- Specification of the operation: income or expense.
- Valuation method used of those contemplated in article 18.4 of the Corporate Tax Law.
- Total amount of the operation, not including Value Added Tax (VAT).
What are the operations in question?
A. WITH REGARD TO RELATED PARTY TRANSACTIONS
A differentiation is made. In the first place, related persons or entities that carry out the following operations are obliged to present them:
- Generic transactions carried out within the tax period, with the same entity or related person, provided that the total amount of the consideration is greater than 250,000 euros for the consideration of all the operations according to the market value.
- Specific operations of the same type and using the same valuation method, during a certain tax period, which together exceed 100,000 euros in value in the market.
- All those operations of the same type and that have used the same valuation method within the tax period, provided that all such operations exceed 50% of the turnover of the entity, considered as a whole, in the corresponding period; although individually each linked NIF does not exceed 50%.
- Information on transactions carried out with related persons or entities, in which a reduction in income from certain intangible assets is applied. In those cases in which the taxpayer applies the reduction provided for in article 23 of the Corporate Tax Law (LIS), for obtaining income as a result of the transfer of intangible assets to related persons or entities, such information will also have to be submitted.
B. REGARDING TAX HAVENS
On the other hand, entitiesare also obliged to submit form 232 to the Tax Agency:
- who have carried out operations related to countries or territories classified as tax havens within the tax period.
- those that at the end of the tax period, have securities related to countries or territories classified as tax havens.
What’s New in the Declaration of Linked Transactions: The Changes Introduced by Form 232
The information that is now presented through Form 232 was that which previously referred to transactions linked to Corporation Tax, and which was part of Model 200.
The recent rule has expanded the cases of operations that must be reported, which implies, from the point of view of the taxpayer, a greater complexity and a greater duty of attention when submitting information to the Tax Agency.
Deadline for submission of the new Form 232
The deadline for submission,as a general rule, is within the month following the ten months after the end of the tax period that corresponds to report, being November 30, 2017 the last day for those who started from January 2016.
Taxpayers who close their financial year on December 31 will have the opportunity to submit the information throughout the month of November of the following year.
We hope you found this article useful and, if you have any questions, remember that you can always contact one of our tax advisors.