- 1Spain: An attractive country for investment
- 2Setting up a business in Spain
- 3 Tax System
- 4 Investment aid and incentives in Spain
- 5 Labor and social security regulations
- 6 Intellectual property law
- 7Legal framework and tax implications of e-commerce in Spain
- AI Annex I Company and Commercial Law
- AIIAnnex II The Spanish financial system
- AIIIAnnex IIIAccounting and audit issues
- Different ways of doing business in Spain
- Tax Identification Number (N.I.F.) and Foreigner Identity Number (N.I.E.)
- N.I.E for individuals who are to be shareholders or directors of companies resident in Spain, tax and legal representatives of a branch in Spain, permanent establishments or limited liability entrepreneurs
- N.I.F. for legal entities that are to be shareholders or directors of companies resident in Spain, or owners of branches in Spain or permanent establishments
- Provisional and definitive N.I.F. of the company resident in Spain that is to be set up
- Formation of a company
- Limited liability entrepreneur
- Opening of a branch
- Other alternatives for operating in Spain
- Forms of business cooperation
- Temporary Business Associations (UTEs)
- Economic Interest Groupings (EIGs)
- Silent participation Agreement (C.E.P.)
- Participating loans
- Joint ventures through Spanish corporations or limited liability companies
- Distribution, agency, commission agency and franchising agreements
- Other alternatives for investing in Spain
- Dispute resolution
- Appendix I - Table summarizing the tax treatment given to the various ways of investing in Spain
8. Other 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:
|Attestation by public authenticating officer||Necessary 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||
|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” heading||See Chapter 3.|
|Costs||Depending on the Spanish public authority before which the acquisition is made:
|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 internalizer 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.33
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:
- The shareholder’s protest due to the insufficiency of dividends recognized must be recorded in the certificate of distribution of income.
- 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.
- 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.
33It should be noted that, as a result of the Covid-19 pandemic, in accordance with Royal Decree-Law 18/2020, enterprises that avail themselves of the special temporary layoff (ERTE) regime will not be able to distribute dividends relating to the fiscal year in which the ERTE was applied, unless they first pay the amount relating to the exemption applied to social security contributions. In this respect, the fiscal year when the company does not distribute dividends as a result of applying the above-mentioned provision will not count for the purpose of the right to withdrawal of shareholders under article 348 bis of the Capital Companies Law. This restriction will not be applicable to those entities that, as of February 29, 2020, have less than fifty employees or similar persons registered with the Social Security System.