On October 7th was published the Royal Decree-Law 15/2017, of October 6th, of urgent measures regarding the mobility of economic operators within the Spanish territory, which modifies Article 285.2 of the Spanish Companies Law.
This amendment clarifies that a Company’s government body (whatever its form) is, as a general rule, entitled to change the registered office of the Company within the Spanish territory, and that only if the shareholders consider that this established general rule should be modified, the Company’s Articles of Association should be amended denying expressly this competence to the government body.
Therefore, as from October 7th, aforementioned Article 285 of the Spanish Companies Act is modified as follows:
- Any amendment of the Company’s Articles of Association shall be responsibility of the general meeting.
- As an exception to the provisions of the previous section, the government body shall be entitled to change the registered office within the national territory, unless provided otherwise by the Articles of Association. A contrary provision of the Articles of Association shall be considered as such only if said Articles of Association expressly establish that the government body does not hold this competence.
The Royal Decree-Law 15/2017, of October 6th, includes a Unique transitional provision related to the regime of the Articles of Association approved before the entry in force of the Royal Decree-Law, which establishes the following:
For the purposes of article 285.2 of the consolidated text of the Spanish Companies Act, as amended by this Royal Decree-Law, it will be understood that there is a contrary provision in the Articles of Association only when, after the entry into force of this Royal Decree-Law, a statutory amendment that expressly stipulates that the government body does not have the competence to change the registered office within the national territory had been approved.
As a reminder and in order to avoid any confusion between the registered office and the tax domicile, we would like to specify that for tax purposes, Section 2. b) of Article 48 of the Spanish General Tax Law provides that:
- Tax domicile shall be:
- b) For legal entities, their registered office, provided that the said registered office centralizes the administrative management and direction of the business. Otherwise, the place where such management and direction are carried out shall be considered as such tax domicile.
Where the location of the tax domicile cannot be determined in accordance with the above criteria, the place where the highest value of the fixed-assets is located shall prevail.
Therefore, please bear in mind that the registered office must comply with the above referred criteria in order to also be regarded as tax domicile before the Spanish Tax Administration.