2Central government taxes
2.7 Transfer and stamp tax
Transfer and Stamp Tax is levied on a limited number of transactions, including most notably:
| Tax Rate (*) | (%) |
|---|---|
| Corporate transactions. (**) | 1 |
| Transfers of real estate. | 6 |
| Transfers of movable assets and administrative concessions. | 4 |
| Certain rights in rem (mainly guarantees, pensions, security or loans). | 1 |
| Certain public deeds. | 0.5 |
- The Autonomous Communities are entitled to opt to apply a different rate in certain cases. In fact, most of them have opted to apply a 7% rate (and even higher rates) to real estate transfers, and a 1.5% rate of Stamp Tax to certain transactions.
- At present, business restructuring transactions, company formations, capital increases, shareholder contributions in general and certain transfers of the place of effective management or registered office are not taxed.
However, if the vendor is a company or an individual real estate developer, the transfer of buildable land or the first supply of buildings is taxed under VAT. Second and subsequent supplies of real estate by companies, traders or professionals in the course of their activity may opt to pay either transfer tax or VAT. This option is applicable if the acquirer is a trader or professional who can deduct all his VAT borne and the vendor waives to the VAT exemption, in which case, the acquirer will pay VAT rather than transfer tax (this option was only possible if the recipient could deduct all of the VAT borne, although starting on January 1, 2015, it will suffice for the right to the deduction to be partial, even if due to the expected use of the goods transferred).
Transfers of shares of Spanish companies are generally exempt from any indirect taxation. However, they can trigger taxation under VAT/transfer tax if real estate companies are transferred (that is, companies in which more than 50% of the assets are real estate located in Spain not assigned to business or professional activities) where the control of those entities is acquired, if it is considered that the transfer is carried out with an “avoidance aim”. An “avoidance aim” is presumed to exist (unless proven otherwise) where the acquirer obtains control of a real estate company and its real estate (or the real estate of the real estate companies owned by that company, the control of which is acquired) is not assigned to economic activities.
In these cases, the transaction will be subject to VAT or to transfer tax, as appropriate.
It should be noted, lastly, that unlike VAT, transfer tax entails a cost for the acquirer/beneficiary.
