The recent amendment introduced by the 2018 State General Budget Law seeks to define, on the one hand, the intangible assets eligible for such a reduction, excluding those assets that cannot be registered and, on the other hand, the income obtained from the transfer or assignment of the use of the intangible asset subject to the reduction
Spanish Companies are entitled to benefit from a reduction in their Corporate Tax (CIT), so – called “Patent box” (PB). This reduction consists in including in the CIT base of the assignor of certain intangible assets, such as patents, utility models and advanced registered software, only a part of the income obtained from their transfer or assignment of their use to third parties.
The recent amendment introduced by the 2018 State General Budget Law seeks to define, on the one hand, the intangible assets eligible for such a reduction, excluding those assets that cannot be registered and, on the other hand, the income obtained from the transfer or assignment of the use of the intangible asset subject to the reduction.
✔ In order to benefit from this tax incentive, companies must comply with a series of requirements that were already regulated in the previous legislation, related to the creation of the intangible asset by the transferring entity, the use of the rights acquired by the transferee in the course of its business, or the need for this transferee of not residing in a non-taxable country or in a country considered a tax haven, among others.
However, two further requirements have been introduced under the new regulations:
- the obligation to differentiate the consideration for ancillary services provided by the assignor now also applies to the ancillary supply of goods; and,
- the obligation of the transferor to keep accounting records to determine the direct income and expenses relating to the assets transferred.
✔ Regarding the intangible assets that are entitled to benefit from the reduction, although the reference in CIT Law to “plans, formulae or secret procedures” and “rights to information relating to industrial, commercial or scientific experience” has been deleted, the scope of the reduction is extended to include income from “utility models, supplementary protection certificates for medicines and plant protection products” as well as “advanced registered software obtained as a result of research and development projects”.
✔ In relation to the determination of the income obtained that may benefit from the PB reduction, under the new regulations:
- the positive income obtained from the transfer or the assignment of the use of the intangible asset that exceeds the sum of the expenses incurred by the entity related with its creation and subsequent depreciation is eligible for the reduction; and,
- negative income obtained in a tax period is also subject to reduction if positive income has been obtained in previous tax periods to which the reduction has been applied, whilst it does not exceed the amount of such previous positive income.
✔ It is important to take into account that this benefit differs depending on the date on which the transfer or the assignment of the use of an intangible asset took place, and that these new provisions apply for the years beginning as from the 1st of January 2018.