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2
Establishing a business in Spain
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8Other alternatives for investing in Spain

8.1. Acquisition of shares of an existing corporation or of a limited liability company

The following table summarizes the fundamental legal steps involved in the acquisition of shares of an existing corporation or limited liability company:

FormalityS.A.S.L.
Attestation by public authenticating officerNecessary where required by Spanish law or by the bylaws or where so agreed by the parties.Always required.
Documentation to be provided to the notary
  • Title to the shares being transferred.
  • Powers of attorney, as the case may be, to appear in the name of the buyer or seller, as appropriate. If the powers of attorney were granted abroad, they must be duly legalized (See requirement 5 under section 4 above).
  • N.I.E./N.I.F. or Spanish national identity card of the buyer and the seller (see section 3 above).
  • Declaration regarding the beneficial owner, from both the buyer and the seller, if legal entities: a notarial document containing representations by the beneficial owner may be provided or a declaration made in the deed itself (see requirement 4 under section 4 above).
  • Documentary evidence of payment and how the payment was made (specifically, if the price was received before execution of the deed, the amount and whether it was paid by check or any other money transfer document, or by bank transfer).
Subsequent declaration of the investment to the D.G.C.I.Filing of form D-1A at the Ministry of Industry, Trade and Tourism. This form must include the protocol number and date of the public document formalizing the investment, must be signed by telematic means by the individual or legal entity making the investment and countersigned by the public authenticating officer, and filed by telematic means via the website of the Directorate-General for International Trade and Investments (D.G.C.I.).

In some cases, a prior declaration is required (see Chapter 1, section 8 for further information).
Payment of transfer tax and stamp tax under the “transfers for consideration” headingSee Chapter 3.
CostsDepending on the Spanish public authority before which the acquisition is made:

  • Notary fee: The scale applicable for the formation of a branch is also applicable here.
  • Fee of Spanish Consul abroad: The fee will be determined in the legislation in force on notarial fees.
Financial transactions tax (Tobin Tax)The financial transactions tax (Tobin Tax) is intended to levy 0.2% on transactions for acquiring the shares of listed Spanish companies with market capitalizations above €1,000 million, regardless of the places of residence of the agents acting in those transactions; and will not affect the primary market, transactions necessary for the functioning of market infrastructure, company restructuring transactions, transactions taking place between companies in the same group, or temporary transfers. The taxable person will be the acquirer of the shares. The taxable person that must pay over the tax to the State Tax Agency (regardless of where it is established) would be one the following ones, depending on the different cases envisaged in the law: the member of the market that executes the acquisition on behalf of others, the investment services company or credit institution that makes the acquisition on its own behalf, the financial intermediary, the systematic internationaliser or, lastly, the depositary. The assessment of the tax will be monthly.

In relation to this form of investment, it should be noted that shareholders of limited liability companies or corporations (except for (i) listed companies, companies whose shares are admitted to trading on a multilateral trading facility; (ii) companies in situations of insolvency or pre-insolvency; and (iii) sports corporations) are recognized a right of withdrawal in the event of a failure to distribute dividends once the fifth fiscal year since the company was registered at the Commercial Registry has elapsed.30

Following the latest amendment of article 348 bis of the Capital Companies Law, the requirements for shareholders to be able to exercise the right of withdrawal (within one month after the shareholders’ meeting was held) are as follows:

  1. The shareholder’s protest due to the insufficiency of dividends recognized must be recorded in the certificate of distribution of income.
  2. The shareholders’ meeting must not approve the distribution as a dividend of a least twenty-five percent of the income obtained in the preceding year where such income is legally distributable, provided that the company has not obtained income in the past three fiscal years.
  3. The total amount of dividends distributed in the past five years must be less than twenty-five percent of the legally distributable income recorded in that period.

Also, even if the above requirements are not met, this right of withdrawal is granted to the shareholder of the parent company of the group where the company in question is required to prepare consolidated financial statements, where: (i) the shareholders of the company do not approve the distribution as a dividend of at least twenty-five percent of the consolidated income attributed to the parent company in the prior year, provided that it is legally distributable; and (ii) consolidated income attributed to the parent company has been obtained in the past three fiscal years.

30Following the entry into force of Royal Decree 7/2021, the shareholder’s right to withdraw in the event of a failure to distribute dividends has been eliminated for credit institutions, credit financial establishments, investment services firms, payment institutions, electronic money institutions, and financial holding companies and mixed financial holding companies.