L_2015056EN.01003801.xml
| 27.2.2015 | EN | Official Journal of the European Union | L 56/38 |
COMMISSION DECISION (EU) 2015/314
of 15 October 2014
on the State aid SA.35550 (13/C) (ex 13/NN) (ex 12/CP) implemented by Spain Scheme for the tax amortisation of financial goodwill for foreign shareholding acquisitions
(notified under document C(2014) 7280)
(Only the Spanish text is authentic)
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provision(s) cited above (1) and having regard to their comments,
Whereas:
1. PROCEDURE
| (1) | On 28 October 2009, the Commission adopted a negative decision with recovery concerning aid granted to beneficiaries of a Spanish scheme allowing tax deductions in connection with the acquisition of shareholdings in non-resident companies (hereinafter ‘the First Decision’) (2). That decision was limited to acquisitions within the Union and the Commission maintained the procedure open for acquisitions outside of the Union since the Spanish authorities undertook to provide new details concerning the alleged obstacles to cross-border mergers outside the Union. |
| (2) | On 12 January 2011, the Commission adopted a negative decision with recovery, concerning the aid granted to beneficiaries on the basis of the contested legislation when making extra-EU acquisitions (hereinafter ‘the Second Decision’) (3). |
| (3) | However, the Commission decided to limit the scope of the recovery obligation contained in the First and in the Second Decision due to the existence of legitimate expectations. |
| (4) | By e-mail of 12 April 2012, the Spanish authorities informed the Commission that on 21 March 2012 the Spanish authorities adopted a new binding administrative interpretation (4) (‘consulta vinculante’) of the aid scheme concerned, to be applied also to transactions that took place prior to that date. |
| (5) | By letter of 4 July 2012, in the context of the recovery procedure of the Second Decision, the Commission asked the Spanish authorities to clarify a number of issues concerning the new administrative interpretation. Spain submitted its comments on 5 September 2012. |
| (6) | In October 2012, with reference to this new administrative interpretation, the Commission registered a new ex-officio case (5) in its State aid Registry. |
| (7) | By letter of 29 October 2012, the Commission sent a request for information to Spain. The Spanish authorities provided the requested information on 5 December 2012. On 12 December 2012 a technical meeting took place between the Commission and the Spanish authorities. Following that meeting, on 19 December 2012 the Commission sent another letter to Spain in the context of the recovery procedure, presenting also its doubts on the legitimacy of the new administrative interpretation. Spain submitted its comments on 14 February 2013. |
| (8) | On 26 April 2013, the Commission sent a letter to the Spanish authorities, urging them to review the new administrative interpretation of the aid scheme in the light of State aid rules. On 31 May 2013, the Spanish authorities replied to the Commission's letter. |
| (9) | By letter of 21 June 2013, the Commission services informed the Spanish authorities that the Commission was considering issuing an injunction, requiring the suspension of any unlawful aid granted under the new administrative interpretation, and invited them to submit their comments thereof. On 26 June 2013, Spain requested an extension of the deadline originally set by the Commission, which was refused on the same day. Spain submitted its comments on the suspension injunction by letter of 1 July 2013. |
| (10) | As the amended scheme had not been notified pursuant to Article 108(3) of the Treaty and has already been applied before receiving the preliminary approval of the Commission under Article 107 of the Treaty, the measure was registered in the Commission's State aid Registry as non-notified aid under number SA. 35550 (13/NN). |
| (11) | By letter dated 17 July 2013, the Commission informed Spain that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union in respect of the aid. |
| (12) | The Commission decision to initiate the procedure was published in the Official Journal of the European Union (6) . The Commission invited interested parties to submit their comments. |
| (13) | The Commission received comments from the Spanish authorities and five interested parties. The Commission forwarded the comments of the interested third parties to Spain, which was given the opportunity to react. Its comments were received by letter dated 25 November 2013 and 20 December 2013. |
| (14) | By letter of 26 March 2014, the Commission sent a request for information to Spain. The Spanish authorities provided the requested information on 7 May 2014. |
2. DESCRIPTION OF THE MEASURE
2.1. Introduction
(a) Article 12(5) TRLIS
| (15) | The legal base of the aid scheme concerned is contained in the Spanish Corporate Tax Law (Real Decreto Legislativo 4/2004, de 5 de marzo, por el que se aprueba el texto refundido de la Ley del Impuesto sobre Sociedades, hereinafter ‘TRLIS’), in particular in Article 12(5) read in conjunction with Article 21 thereof. |
| (16) | Article 12(5) TRLIS, which entered into force on 1 January 2002, introduced the possibility for a Spanish resident company to deduct from the corporate tax base the financial goodwill arising from the acquisition of shareholdings in a non-resident company whose income is eligible for the tax exemption provided in Article 21 TRLIS (previous Article 20(bis) LIS). |
| (17) | Financial goodwill is defined by Article 12(5) TRLIS as the part of the difference between the purchase price of the shareholding and its book value on the date of the acquisition that has not been booked under the goods and rights of the non-resident company. That part of the difference would be deductible from the tax base, up to the annual maximum of one twentieth of its value. This is without prejudice of the applicable accounting rules. |
(b) The criteria of Article 21 TRLIS
| (18) | Article 21 TRLIS lays down the requirements that the income of the non-resident company should meet so the resident company can apply the deduction of Article 12(5) TRLIS:
| (a) | The percentage of shareholding — direct or indirect — in the equity of the non-resident company must be at least 5 %. In addition, the shareholding must be owned by the resident company for at least one uninterrupted year (7); |
| (b) | The non-resident company has to be subject to a foreign tax similar to corporate tax. This condition is presumed to be met if the country of residence of the target company has signed a tax convention with Spain to avoid international double taxation, which contains a clause on exchange of information (8); |
| (c) | The profits should stem from business activities carried out abroad. Such a condition is met when at least 85 % of the income meets the following criteria (9):
| (i) | The revenues of the non-resident company are obtained abroad and cannot be included in the tax base due to the application of international fiscal transparency rules. In particular, the revenues are considered to meet this requirement if they derive from the following activities:
| — | Wholesale trade when the goods are made available to the purchasers in the country or territory of residence of the non-resident company or in any country or territory other than Spain, as long as the operations are carried out by the non-resident company; |
| — | Services provided in the territory where the non-resident company has its tax domicile, as long as the operations are carried out by the non-resident company; |
| — | Financial services provided to clients that do not have their tax domicile in Spain, as long as the operations are carried out by the non-resident company; |
| — | Insurance services relating to risks located in a territory or country other than Spain, as long as the insurance services are carried out by the non-resident company. | |
| (ii) | Dividends or shares on profits in non-resident companies deriving from indirect shareholdings that meet the requirements contained in Article 21(1)(a) TRLIS. In addition, capital gains resulting from the transmission of shareholdings in non-resident companies as long as they comply with the requirements of Article 21(2) TRLIS. | | |
| (19) | It is worth noting that although Article 12(5) cross refers to Article 21 TRLIS, the latter is originally conceived to lay down the conditions for exempting from corporate tax dividends and income of foreign origin that derive from the acquisition of shareholdings in non-resident companies with the aim to avoid double international taxation (10). |
(c) The notion of financial goodwill
| (20) | Financial goodwill is a fiscal concept which was introduced by the Spanish legislator in Article 12(5) TRLIS and which is linked to the accounting notion of goodwill. |
| (21) | Goodwill is an intangible asset that represents the value of a well-represented business name, good customer relations, employee skills and other such factors expected to translate into greater than apparent earnings in the future. From an accounting point of view, goodwill is calculated as the difference between the purchase price of a company |
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