Company Formation Spain

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Company Formation Spain: S.L. and holding company

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Spain has a corporate income tax rate of 30% (2008) and has never been considered a financial center. However in order to attract the headquarters of foreign multinational companies Spain accords favorable tax treatment to entities known as "co-ordination centers" in the Basque and Navarre areas. Spain has a relatively benign holding company taxation regime; and there is Venture Capital Fund legislation offering substantial tax breaks.

Spain's Economy Minister Pedro Solbes said in January, 2006, that the government would introduce proposals into parliament aimed at simplifying and cutting rates of taxation, including corporate tax, which at that time was 35%.

Spain is now one of the 8 main European jurisdictions in which it is fiscally attractive to locate a holding company. A Spanish holding company is known as an "ETVE" (Entidad de Tenencia de Valores Extranjeros). Spain's extensive and growing double taxation treaty network means that it exercises substantial leverage in reducing withholding taxes on dividends remitted to a Spanish holding company by a foreign subsidiary located in a double taxation treaty country.

An ETVE is a regular Spanish company subject to a 30% tax on its income, but exempt from taxation on qualified foreign-source dividends and capital gains. As such, the ETVE is protected by EU Directives such as the Parent-Subsidiary Directive and the Merger Directive and is regarded as a Spanish resident for tax purposes pursuant to Spain's 50 tax treaties. The broad tax treaty network with Latin America and the European character of the ETVE make it an interesting vehicle for channelling capital investments towards Latin America, as well as a tax-efficient exit route for EU capital investments by non-EU companies.

In June 2000, the regime was amended in order to introduce significant new improvements, including a capital gains tax exemption on the transfer of shares in the Spanish holding company, which enhance the possibilities of the ETVE as a holding vehicle. Also, the EU's Code of Conuct Committee has determined that the ETVE does not represent potentially harmful tax competition.

For a country to be an attractive location in which to set up a holding company 4 criteria must be satisfied:

Incoming Dividends: Incoming dividends remitted by the subsidiary to the holding company must either be exempted from or subject to low withholding tax rates in the subsidiary's jurisdiction.

Dividend Income Received: Dividend income received by the holding company from the subsidiary must either be exempted from or subject to low corporate income tax rates in the holding company's jurisdiction.

Capital Gains Tax on Sale of Shares: Profits realized by the holding company on the sale of shares in the subsidiary must either be exempt from or subject to a low rate of capital gains tax in the holding company's jurisdiction.

Outgoing Dividends: Outgoing dividends paid by the holding company to the ultimate parent corporation must either be exempt from or subject to low withholding tax rates in the holding company's jurisdiction.

By these criteria Spain is a moderately attractive jurisdiction in which to locate a holding company but without the advantages of Denmark.

Withholding Taxes on Incoming Dividends

As a member of the EU Spain is governed by the provisions of the EU's parent/subsidiary directive, whose effect is that where a Spanish holding company controls at least 15% (10% from 2009) of the shares of an EU subsidiary for a minimum period of 12 months any dividends remitted by the EU subsidiary to the Spanish holding company are free of withholding taxes.

Spanish holding company rules include a participation exemption at the 5% level for non-resident shareholdings, which can be direct or indirect. Shares must have been held for a minimum of 12 months.

A subsidiary must be a non-resident corporate entity with no business activities in Spain.

Where the provisions of the parent/subsidiary directive do not apply (or where anti-avoidance provisions are in place) Spanish holding companies can rely on a reasonably extensive network of double taxation treaties the effect of which is to obtain a reduction in withholding tax rates on dividends remitted to Spain from the subsidiary jurisdiction.

Spain has nearly 70 double taxation treaties in place. The greater a country's network of double taxation treaties the greater its leverage to reduce withholding taxes on incoming dividends. An elaborate network of double taxation treaties is thus a key factor in the ability of a territory to develop as an attractive holding company jurisdiction.

The dividend income remitted by the foreign subsidiary to the ETVE holding company must have been taxed abroad at a rate that is analogous to the corporate income tax rates applicable in Spain - obviously this rules out many offshore jurisdictions, although those with 'designer' corporate forms may manage to wriggle through.

The income remitted to the "ETVE" must relate to profits earned from core corporate activities and must not include "passive income".

Corporate Income Tax on Dividend Income Received

The mainstream Spanish corporate income tax rate is 30%. Income accruing to an ETVE holding company which falls under the previous paragraph is free of corporate tax in Spain. The ETVE must have an effective presence in Spain and must be an organization with substance and personnel (i.e. not be merely a brass plate company).

Capital Gains Tax on the Sale of Shares

Any capital gains made by the ETVE on the sale of shares in qualifying non-resident subsidiaries are free of capital gains tax in Spain in most circumstances, although there are some conditions. Capital gains tax in Spain currently stands at 30%.

Withholding Taxes on Outgoing Dividends

Under the EU's parent/subsidiary directive dividends paid by Spanish subsidiaries to EU parent corporations are exempt from Spanish withholding taxes provided the EU parent corporation has held 15% (10% from 2009) of the shares in the Spanish subsidiary for at least 12 months.

Outgoing dividends paid by an ETVE intermediate Spanish holding company to its non-resident parent corporation are free of withholding taxes in Spain (irrespective of the existence or non-existence of a double taxation treaty) unless the parent corporation is in a jurisdiction where it will not pay corporate taxes equivalent to those ruling in Spain. Evidently this rules out many offshore jurisdictions, although those with 'designer' corporate forms may qualify.

If the parent corporation is not an EU entity or if these conditions are not otherwise satisfied then a standard withholding tax rate of 25% applies on outgoing dividends unless that rate has been reduced (usually to between 5% and 15%) by the provisions of a double taxation treaty.

Comparison with Danish Holding Companies

Since Denmark is currently considered the benchmark holding company jurisdiction which other contenders seek to emulate, a particularly useful purpose can be served by drawing a comparison between the Spanish "ETVE" and the Danish Holding company regime.

i) Fiscal Benefits: Provided the appropriate conditions can be met both Spanish and Danish holding companies are not assessed to corporate income tax on incoming dividends, to capital gains tax on the profitable disposal of shares in a foreign subsidiary and to withholding taxes on outgoing dividends. However, in the case of Spain, both the remitting subsidiary and the receiving parent must be in jurisdictions which charge corporate taxes equivalent to those ruling in Spain. Evidently this excludes most offshore jurisdictions, severely limiting the usefulness of the Spanish holding company. Denmark has no such rule.

ii) Incoming Dividends & Double Taxation Treaties: A double taxation treaty is the usual means by which the holding company is able to obtain a reduction in the rate of withholding taxes levied on outgoing dividends by the subsidiary jurisdiction from the (usual) standard rate of 25% to a rate which can be as low as 0%.

iii) Parent–Subsidiary Directive: Since both Spain and Denmark are members of the EU neither enjoys any particular advantage in respect of the withholding tax provisions of the Parent-Subsidiary directive save that Spain (unlike Denmark) is among one of many EU territories that has applied anti-avoidance provisions to their interpretation of the directive aimed specifically at holding companies owned by non EU third parties. Moreover because Denmark has signed double tax treaties with most EU countries, where the provisions of the directive are frustrated by anti-avoidance legislation the provisions of double taxation treaties can still be relied on to circumvent any problems thereby created.

iv) Participation Exemption Criteria: It is considerably harder to meet the Danish "participation exemption criterion" of 25% than it is to meet the Spanish level of 5%. Denmark excludes from the participation exemption rules income and capital gains derived from "financial" companies (defined as an entity of which more than 33% of its income is passive). Spain excludes all "passive income". Denmark is marginally more attractive in this respect.

v) Zero Withholding Tax Routes: The combination of Denmark double tax treaty network and its holding company regime means that there are currently more than 35 major countries who with proper structuring can route their dividends through Denmark and not incur any withholding taxes at any stage. In about 40-plus other countries withholding taxes are further substantially reduced by reason of the treaty network. Spanish holding companies cannot compete in this respect.

vi) Capital Taxes: Denmark has no taxes on the issue of shares whereas Spain has a 1% tax.

Why form a company in a foreign country with a tax accountant specialized in international tax law?

The prospect will find numerous agencies specialized in foreign company formations in the internet. As a rule, however, these companies do not employ Tax Accountants specialized in international tax law. Frequently, such formation agencies are not – or only insufficiently - versed in international tax law, or are not permitted to provide advice on legal or tax matters in countries as a consequence of the Legal Advice Act. Formation agencies - or even Tax Accountants – located in the forming countries (for example: Cyprus, Belize etc…) often are only knowledgeable in domestic tax law. If one takes a look at the relevant internet offers, it quickly becomes apparent, that a great deal of the providers publish incorrect or insufficient information, working according to the strategy “The cheaper the better”.

The following factors, among others, are to be observed within the scope of international tax planning / company formation in a foreign country:

-Most countries have laws for the prevention of tax evasion and/or have laws that formulate the right to impose taxes domestically. It is not in the interest of these countries, that companies and individuals have their income taxed in foreign countries, even though “in truth” the managerial supervision is located domestically and / or the activities are transacted / performed domestically and / or “in truth” the taxpayer resides in country and/or a production site is not installed in the foreign country. In many countries, (for example: USA and Germany) “tax evasion” is, in fact, a criminal offense. For this reason, it is somewhat naive to believe, that the right to impose taxes can be relocated to a foreign country, by simply investing a few hundred Euro for the formation of a company in a foreign country. It is true, that almost everything can be done, however domestic tax laws must be observed and – to the extent a production site is not installed in a foreign country, or no site for the exploitation of mineral resources or construction works, whose duration is greater than 9-12 months exist (in the event a Double Taxation Agreement exists this will always constitute a permanent establishment), the impression must be avoided that the foreign company is just a „bogus company”.

- The permanent establishment in a foreign country:

1. Managerial supervision

A production site, a site for the exploitation of mineral resources or construction works, whose duration is greater than 9-12 months, always constitutes the establishment of a place of business in the formation country - at least in the event of a DBA-situation (Double Taxation Agreement). Otherwise the definition of a permanent establishment is based, among other things, on the “place of managerial supervision”. As a rule, this means that a resident of the formation country (ordinary residence) acts as the Company Director. Either the client relocates his ordinary residence to the formation country and acts as the Director of the company himself OR a citizen of the formation country is hired to take the position of Director OR the client himself acts as the Director, and provides proof that he is present in the formation country to perform customary managerial supervision OR our Law Firm in the foreign country provides a Nominee Director.

In the event, a Nominee Director is provided the following factors must be observed:

-The responsibilities of the Nominee Director should be performed by an Attorney or Tax Consultant in the formation country of the company (in the case of a legal entity as a Trustee Director of a Law Firm). This ensures, that the trustee relationship is not disclosed for "incidental" grounds. Only attorneys can effectively protect the trustee relationship from third party access. It goes without saying, that attorneys will demand the corresponding fees and will not just demand a few Euros for their services as a Trustee Director.

Under certain conditions, it can even be required or useful, that a person in the formation country is employed as the Director of the company, i.e. with an employment contract between the company and the Director, payment of payroll taxes and social security contributions; to the extent they are collected. We are also able to provide such an “employed Director”.

The so-called "Formation Directors” are “absolute nonsense”, who resign after the company has been registered and transfer the company and position to the actual beneficiary. In this situation, the "actual Director” can quickly be identified. A Trustee Director must of course be registered and reachable during the entire agreement term.

One “can” deviate from such an arrangement, if the foreign company is formed in a country, which has not entered into a Double Taxation Agreement and / or a Mutual Legal Assistance (MLA) Agreement.

An “Offshore Director is also “absolute nonsense”, an example of this is that a legal entity acts as the Director of an English Limited in Belize. Such a constellation is “asking for it” i.e. asking to be accused of “Avoidance Abuse” and of course, such a company will not be able to open an account or be issued a Value Added Tax ID Number.

2. The place of business in a foreign company

A “Post Office Box” or an "Answering Machine" does not constitute an ordinary place of business. Accordingly, "Registered Office Addresses” do not meet the prerequisites for a proper place of business.

The minimum requirements of a proper place of business are:

-Serviceable postal address, also for registered mail

-Reachable by telephone during normal office hours, personal call reception with the name of the company.

It does not always have to be “large offices”, but it must not be a post office box. The configuration / structure of the place of business is to a high degree dependent upon the company activities. If one assumes that a company can only perform its business activities, if it has 3 offices and 4 employees on-site, then a pure virtual office would indeed appear rather odd. In this situation a “sense of proportion” is required, everything must be plausible.

3. The company account in a foreign country

Many formation agencies offer "help in opening an account”. This means, in plain English, that an account is not opened, for example an English bank will not open an account, if the Director resides on Belize (unless he is present at the opening of the account, which is not probable). Also many banks will not open a company account, in the event only bearer shares are issued (with the exception that the owners are present at the opening of the account or in certain countries such as Switzerland or Belize. However, in these countries the owners must at least be disclosed to the bank and often must be present at the opening of an account.) “Just fill out a few forms” and the opening of an account is done, is, in most cases, nothing but a fairytale and has nothing to do with real-world business practices.

-Taxes must not be paid in tax-haven countries?

Also in this case, a great deal of nonsense is published in the internet. In reality, there are only very few "zero-tax havens”, like for example the Cayman Islands. In fact, many countries (Belize, BVI, Nevis etc…) offer the formation of so-called offshore companies (as a rule International Business Companies, IBCs), i.e. companies who only transact business and generate revenues outside the country, however onshore companies (companies, who transact business domestically) are indeed taxed. Offshore companies must of course provide proof, that they only transact business outside of the country, and they must of course keep their books in order. In addition, there are a series of other taxes (withholding tax, capital gains tax, inheritance tax, property tax, income tax etc…) that may be of interest to our clients and may under certain circumstances be levied in “tax-haven countries”.

- Are tax-haven countries always the most suitable countries for the formation of a company?

Certainly NOT. Tax-haven countries are defined as countries that have not entered into Double Taxation Agreements, Mutual Legal Assistance (MLA) Agreements, or extradition treaties for fiscal offences with other countries that at a minimum do not tax revenues that have been generated outside of the country.

The “screening effect" is not in effect against double taxation, specifically due to the lack of a Double Taxation Agreement. If a company, located in a tax-haven country is, for example, a stockholder of a company in Germany or the USA, in that event dividends distributed to such company in a tax-haven country are subject to the full withholding tax in Germany or the USA; while Double Taxation Agreements, as a rule, limit the withholding tax rate to 5%. Double Taxation Agreements also define under which circumstances the prerequisites for the existence of a permanent establishment are met and that a stock of goods or merchandise (warehouse), a permanent agent or a representation in another contracting state as a rule do not constitute a permanent establishment. Should, for example, a company in Belize maintain a stock of goods or merchandise (warehouse) in another country, this warehouse as a rule does constitute a permanent establishment in the other country, i.e. taxation of the proceeds generated there.

Also the EU Parent Subsidiary Directive does not apply to tax-haven countries. This can have substantial disadvantages for associated companies; because in the case of the application of the EU Parent Subsidiary Directive the dividends distributed between the companies are tax-free (this fact of course is only advantageous to clients from EU states).

Companies in tax-haven countries do not receive Value Added Tax IDs. This could result in substantial disadvantages, if these companies want, for example, to transact business with European companies.

In addition, if one considers the fact that for example Cyprus (EU Member, Double Taxation Agreement with almost all countries) has an income tax of only 10% or the Canton of Zug in Switzerland has a total tax burden of 15.5% for companies or that the EU special economic zones (Maderia, Canary special economic zone) entice with income tax rates below 5%, one should ask oneself the question, if the formation of a company in a tax-haven country is really the correct alternative.

Factors, such as "economic and political stability”, play also a major role. Example Belize: As long as the British military protects Belize against territorial claims of its neighbor Guatemala, investments can reasonably be made. If the protectors withdraw, one can assume the worst will happen. Should one decide to make an investment, one should take out an insurance policy against imminent domain.

Of course, good reasons may exist with regard to forming a company in a tax-haven country. Specifically the fact that Mutual Legal Assistance (MLA) Agreements, and extradition treaties for fiscal offences do not exist and that many tax-haven countries do not maintain a commercial register, can be very helpful in certain constellations.

And of course there are also clients, who setup an “actual company” in tax-haven countries, with offices, employees and an employed Managing Director who maintains his ordinary residence in the foreign country. In such cases, of course, the situation is to be assessed differently.

- Tax Planning within the scope of “associated companies”

Within the scope of associated companies, it is of extraordinary importance, if the EU Parent Subsidiary Directive is applicable and / or if a Double Taxation Agreement has been entered into and / or if the respective country levies withholding tax on outgoing distributed dividends. This - and other details - must be considered in international tax planning.

-Tax Planning within the scope of Holding companies

Numerous details must also be observed in the formation of a foreign holding:

Location of the subsidiaries (DBA-Situation, EU, Non-DBA Situation?)
Advantages and disadvantages of individual holding locations, with regard to the high priority objectives
How are non-holding-activities taxed in the seat country of the Holding?
Does a holding privilege even exist (for example Cyprus, Switzerland, Spain), i.e. no taxation on the distribution of incoming dividends (for example, Cyprus, Switzerland, Spain, the Netherlands) or low taxation?
How are outflows /dividend distributions of the Holding taxed, if they are distributed out-of-country or distributed in-country (withholding tax)?
How are interest and license payments of the Holding taxed?
How are deductions due to losses from sale and write-downs to the lower going concern value addressed?
How are deductions of expenditures for interests / stockholder debt financing addressed?

Conclusion

International tax planning is a very complex subject and belongs in the hands of trained specialists. “Just forming a company on the fly for a few hundred Euros" can have fatal consequences for the client. Good advice costs good money. And a waterproof company constellation, which would standup to subsequent verification - is simply not feasible for a small amount of money.

http://www.etc-lowtax.net/

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