Launching a business project involves a lot of challenges, but there are also some tax breaks that can provide some financial relief in the early years. One of the most interesting is undoubtedly the possibility of paying taxes at a reduced rate of 15% in the Corporate Income Tax, instead of the general rate of 25%, which represents a considerable saving for those who are starting to generate profits.
However, it's not all as simple as it seems, and the Tax Administration has become serious about reviewing the requirements. The devil is in the details, especially when we're talking about strategically structure the company or when there are links with other companies, since an error in interpretation can end in a rather uncomfortable inspection.
Essential requirements to access the tax benefit
In order for a company to benefit from this incentive, it must have been incorporated on or after January 1, 2013, and develop a real economic activityThis means that you must organize human and material resources to produce or distribute goods and services; it is not enough to have the intention to do so or to carry out preliminary steps such as requesting building permits or geotechnical studies, since that does not count as the material start of the activity.
There are several scenarios where this benefit is completely ruled out. For one thing, it doesn't apply if the activity was already being carried out by persons or related entities and has been transferred to the new company by any legal means. On the other hand, it also cannot be applied if a partner who owns more than 50% of the capital was already carrying out that same activity during the year prior to the creation of the company.
In addition, calls are excluded from the game. asset entitiesThose whose main asset is not related to an economic activity. At this point, it is the taxpayer who must demonstrate that the company is operational and that its assets are linked to the business.
The problem of business groups and corporate control
One of the most contentious points is the definition of a group. According to Article 42 of the Commercial Code, a group exists when an entity exercises the control over anotherThis is generally achieved by holding a majority of the votes or capital. If the company is determined to be part of a business group, it automatically loses its status as a newly created entity.
It is vital to differentiate between a mere coincidence of shareholders and a genuine group. The Directorate General of Taxes has clarified that the fact that several companies share the same individual shareholders does not constitute a group. provided there is no direct control relationship between the companies. This is great news for sectors such as real estate or renewable energy, where it is common to create separate special purpose vehicles for each project.
However, if a foreign company owns more than 50% of the capital of the new entity, the Administration usually presumes that there is a control relationshipIn these cases, even if the company is new, it is considered part of a group from the beginning, and is therefore excluded from the reduced rate and the special regime for offsetting negative tax bases.
When is it checked whether the requirement is met?
This is where many entrepreneurs make mistakes. There is a debate about whether it is enough to meet the requirements upon incorporation or whether they must be maintained. The current criteria of the TEAC (Central Economic-Administrative Court) and the DGT (Directorate General of Taxes) indicate that the situation must be analyzed in the tax accrual date of the first period in which a positive taxable base is obtained.
This means that, even if the company was born "clean", if at the time of generating its first profits it has already been acquired by another company or has created subsidiaries that form a business group, Basically, the requirement of not being part of a group must be met both in the constitution and in the exercise of the first benefit and the next one.
There are even cases where the High Court of Justice of Madrid has been unequivocal: if the company was part of a group at its inception, even if it later sells its shares to individuals before starting operations, that and will not be able to apply the reduced rate even if at the time of the first benefit it is no longer in the group.
Deadlines and temporary application of the reduced tax
The 15% rate applies in the first tax period with a positive tax base and in the following period. For companies classified as emerging companies or startupsThis benefit is more generous, extending to the first year of benefits and the following three.
There is a very common question about what happens if the second year is negative. The TEAC resolution of July 2023 makes it clear that the benefit applies strictly to the first positive year and to the even if the latter shows losses. The application of the reduced rate cannot be "stretched out" or postponed until another profitable year is found.
Therefore, if a company is profitable in 2025 and loses money in 2026, the benefit ends there. It will not be able to reapply the 15% rate in 2027 even if it becomes profitable again, since the The deadline is closed. and it does not depend on the base being positive in both exercises.
To take full advantage of these benefits, it is best to avoid creating subsidiaries or bringing in majority shareholders that would make the company part of a larger business group until there is of applying the reduced rate. This ensures that the tax savings are fully realized before changing the corporate structure.
In short, access to the reduced rate of 15% requires that the company has not been the result of a previous business transfer, that it is not a holding company, and, above all, neither at the time of its birth nor when the benefits begin to arrive, strictly respecting the temporal sequence of the fiscal years.