The ownership or right of use, by the entity, of the main assets for the exercise of the activity of its corporate purpose; it implies that the services provided by the working partners are not subject to VAT, and are considered income from work, provided that the activities carried out cannot be considered professional activities.
Services provided to the Company by the partners
Let’s take as an example the partners of a company, dedicated to the hospitality industry, who work in it as waiters and cooks, and who consider the taxation that corresponds to them by Personal Income Tax, as well as the subjection or not to the VAT of the services they provide.
1) In the field of Personal Income Tax:
Those services provided by the member to the company, other than those which correspond to them by their status as directors; in principle they can be considered income from work or economic activities.
In this case, the Directorate-General of Taxes determines that these are income from work, since the activities referred to do not have the nature of professional activities, so they cannot fall into the category of economic activities.
And because we are dealing with related operations,their valuation must be made at their normal market value, in the terms provided for in the corporate tax regulations.
2) In the field of VAT:
The provision of services is considered to be the independent exercise of a profession, art or trade. What determines that the provision of services by natural persons is subject to this tax is that they are provided on their own account.
And with regard to Community legislation,it is established that taxable persons are those who carry out some economic activity independently, excluding from this tax employees and anyone who is linked to the employer by an employment contract.
Consequently, the Directorate-General for Taxation concludes that, since the case concerns a company in which the ownership or right to use of principal assets for the exercise of the social activity falls on the entity itself, the partners that provide services to the latter, are excluded from the scope of application of this tax, insofar as the fundamental element for it, which is the organization of own means, does not concur.
The qualification as work or professional performance of the income received by the partner, alsocondition other formsof remunerationorN. aceí, in relationtothe taxationof a health insurance for an entity’s partner, these are considered returns from work in kind. These incomes are considered exempt if the requirements of the Personal Income Tax Act art.42.3.c are met.
If the member does not provide his services
to the company in the framework of an employment relationship,the aforementioned exemption does not apply to him.
Partners providing services to entities in whose capital they participate
The taxation of these services, provided that they are different from those derived from the position of administrator, is regulated in the Personal Income Tax Act art.27.1.
Only the consideration obtained for the services provided to an entity in whose capital it participates derived from the performance of activities included in the Second Section of the IAE Rates is qualified as a professional activity performance when the taxpayer is included, for this purpose, in the RETA or in an alternative mutual society. Where such requirements are not met, the only possible qualification of such remuneration is that of fulfilling income from work.
The following circumstances must be taken into account in the application of this objective rule:
(a) The activities whose returns can be classified as coming from an economic activity are those carried out by the partner in favor of the company or provided by the company through its partners. In this type of activity, two legal relationships are identified: the one established between the partner and the company, through which the partner provides his services to it; and that lent by society to its client. The remuneration received is integrated as income from the member’s personal income tax, in the first case, and as income from the IS, in the second.
In the case of the partner, in determining whether or not that income should be regarded as income from work or from an economic activity, it is necessary to analyse whether or not the activity from which it originates is included in the Section Two of the IAE Rates:if the activity is included in said Second Section, it is possible to consider the income obtained by the partner of the company for its realization as coming from an economic activity, provided that the rest of the requirements detailed here are met.
(b) The activity, framed in the Second Section of the Rates of the IAE, must be provided to companiesdedicated to the provision of professional services.
(c) The activity carried out by the partner in the companymust be, precisely, the performance of the professional services that constitute the object of the entity. Within such services are understood include the marketing, organizational or equipment management tasks, and the internal services provided to society within said professional activity.
Working partners and health insurance
If your company pays for a worker’s health insurance, that of his spouse and that of his descendants; the employee must not be taxed in his personal income tax for the premiums paid (up to 500 euros per year per beneficiary, or up to € 1,500 in case of disabled).
However, if the worker is at the same time a partner in the company, would he also have the same right? Well, everything will depend on the social security contribution scheme:
- If the member has effective control of the company and, therefore, contributes to the RETA, the health insurance does not enjoy exemption in their Personal Income Tax. BEWARE, because for the exemption to be applicable, there must be an employment relationship (which is not the case in that case).
- However, if the partner does not have effective control and contributes to the General Social Security Scheme, it can be understood that his relationship with the company is employment and, therefore, he is entitled to the incentive.
If your company pays health insurance to a working member, in order for this remuneration to be exempt, the member must contribute to the General Social Security Scheme.
If you are listed on the RETA, there is no exemption.
If you have any questions about all these types of taxes, you can contact any of our advisors to help you solve it.