Overtredende prosedyre mot Spania om skatt på arv og gaver
21 mai, 2010
Last May 5, the European Commission published a reasoned opinion delivered against Spain (2nd stage in infringement proceedings). An infringement proceeding is initiated whenever the Commission becomes aware, through any channel, that an EU Member State has a law in force that infringes on EU Law.
Bedriftsmedlem GARRIGUES vil informere om følgende:
Last May 5, the European Commission published a reasoned opinion delivered against Spain (2nd stage in infringement proceedings). An infringement proceeding is initiated whenever the Commission becomes aware, through any channel, that an EU Member State has a law in force that infringes on EU Law.
Said opinion refers to the discrimination entailed by the Spanish inheritance and gift tax («ISD») against nonresident taxpayers and against resident taxpayers that have assets abroad (such as real estate or holdings in a family business or company). The discrimination would be deemed effective because Spain establishes tax benefits (basically, a lower tax burden) where the taxpayer is a Spanish tax resident or the inherited assets are located in Spain.
The press release is too brief to enable us to know the exact content of the opinion. In any case, it is true that ISD entails a number of questionable aspects, basically due to the fact that the taxes which are regulated by the Autonomous Communities (in charge of establishing the most relevant tax allowances and reductions) do not apply to nonresidents. Also, at times, the connecting factors of the tax in some issues related to resident taxpayers can raise doubts.
Although Norway is not an EU Member State, it is a signatory to the Agreement creating the European Economic Area and, therefore, the freedoms of movement apply to it similarly as they do to countries within the EU. In this case, the Commission considers that the freedom of movement of workers and the freedom of capital have been breached. Furthermore, this last freedom already applies both between EU Member States and with third States, as established in the Treaty on the Functioning of the European Union.
The Commission´s press release may be found at this link:
Additionally, in relation to this same issue, it should be recalled that reference was also made to nonresident individuals subject to ISD in Spain in the infringement proceeding of January 28, 2010, concerning the appointment of tax representatives by nonresidents:
Lastly, bear in mind that ISD applies to Spanish resident heirs, beneficiaries and donees and is charged on all assets received (located in Spain or abroad). Non-resident beneficiaries are also subject to this tax as non-resident taxpayers, and must pay the tax in Spain only on the acquisition of assets and rights (whatever their nature), that are located, exercisable or to be fulfilled in Spain.