2 Central government taxes

2.17 Temporary taxes introduced by Law 38/2022 of December 27, 2022

2.17.1 Temporary Solidarity Tax on Large Fortunes (Solidarity Tax)

This is a direct and personal tax, supplementary to wealth tax, which is charged on net assets over and above €3,000,000. Unlike wealth tax, it is a central government tax which cannot be devolved to the autonomous communities.

This tax will be applied across the entire national territory throughout fiscal years 2022 and 2023. However, the rules include a clause that envisages its review at the end of that period, to decide whether or not it should be extended.

The tax base, taxpayers and exemptions are to be determined in accordance with wealth tax rules. As in the case of wealth tax, there is a minimum exempt amount of €700,000 which is not applicable to non-resident taxpayers.

The scale of tax rates applicable for the purposes of this tax is as follows:

Once gross tax payable has been determined, a limit similar to that already existing for personal income tax payable and wealth tax payable is applicable, in such a way that when the sum of gross tax payable for personal income tax, wealth tax and the temporary solidarity tax on large fortunes exceeds 60% of taxable income for personal income tax purposes, the amount of solidarity tax payable is reduced down to that limit, although the reduction may not exceed 80% of the solidarity tax payable prior to its application. For the calculation of these figures, the law refers us in full to the rules set out in wealth tax legislation.

Moreover, once the above mentioned limit has been applied, the rules stipulate that the amount of wealth tax “effectively paid” is to be deducted from the resulting amount of tax payable. This means that the tax shall end up being paid only (or for the most part at least) in those autonomous communities in which there is a full allowance applicable for wealth tax purposes. This is what was intended by the legislature, its aim being, in addition to the collection of taxes, to make the taxation of assets between the different autonomous communities more equal.

Finally, a representative (an individual or legal entity resident in Spain) must be appointed by the following persons:

• Persons not resident in Spain or in another member state of the European Union (EU) or in a state of the European Economic Area (EEA) with legislation on mutual assistance in relation to the exchange of tax information and collection on the terms of the General Taxation Law.
• Persons resident in Spain who leave the country after the occurrence of the taxable event for a third state that does not belong to the EU or the EEA, with legislation in relation to the exchange of tax information, if they are going to return to Spain after the end of the filing period for the tax return.

This tax will accrue on December 31 of each year and is required to be self-assessed. Based on date of its entry into force, returns will therefore be required to be filed for the first time in 2023 based on assets held at December 31, 2022.

2.17.2 Temporary charge on energy and temporary charge for credit institutions and credit financial establishments

a) Temporary charge on energy

This is payable by individuals or entities who are classed as a principal operator in energy sectors pursuant to the CNMC decisions dated December 10, 2020, December 16, 2021 and June 9, 2022, and those classed as principal operators for the purposes of the charge, who engage in Spain in activities relating to the production of crude oil or natural gas, coal mining or oil refining, where their net revenues for the year preceding the year in which the payment obligation for the charge arises derive in a portion of at least 75% from economic activities relating to extraction, mining, oil refining or the manufacture of coke products. Exemptions based on net revenues are envisaged.

The charge is calculated by multiplying net revenues from the activity carried on in Spain in the previous year by 1.2%. There are certain amounts corresponding to other taxes or regulated activities, as specified in the rules, which are excluded from net revenues.

b) Temporary charge for credit institutions and credit financial establishments

This charge is payable by credit institutions and credit financial establishments operating in Spain whose aggregate revenues from interest and fees corresponding to 2019 are equal to or higher than €800 million.

The amount payable is calculated by multiplying by 4.8% the sum of net interest income and revenues and expenses in respect of fees obtained from the activity carried on in Spain, as disclosed in the income statement for the calendar year preceding that in which the payment obligation arose.

c) Common features:

• The payment obligation arises on January 1 each year. An advance payment in February each year equal to 50% of the corresponding amount is envisaged, based on an estimate of the annual amount to be made as of that date. The final assessment must be filed in September each year, deducting the advance payment made in February.
• The amount of these charges cannot be treated as a deductible expense for corporate income tax purposes.
• These charges cannot be passed on (directly or indirectly) to customers. Any breach of this restriction is classed as a very serious infringement, penalizable with a fine equal to 150% of the charge passed on.
• Special rules have been provided for groups which file returns in provincial (“foral”) territory and in common territory.
• The expectation is that the Government will draft a provisional report at the end of 2023 on the first year of application of these charges, and a study at the end of 2024 in which the possibility of making them both permanent is evaluated.