Spanish Corporate income tax regulations permit the application of a partial exemption on income deriving from the lease or sale of qualifying intangible assets. This scheme is commonly known as “Patent box”.
This tax incentive aims at stimulating activities that contribute to the creation of technical knowledge with industrial or commercial application within the frame of an innovative activity.
Since it was introduced in Spanish regulations, it has been the object of several changes. However, its essence has always remained the same: promoting value added activities through a tax relief.
✔ The assets that can give rise to this benefit form part of a numerus clausus list which includes patents, utility models, complementary certificates of medicines and phytosanitary products, protected patterns as well as software deriving from an R&D activity.
✔ One of the requirements to apply this partial exemption consists that the taxpayer has totally or partially created the intangible asset. Although there is not a minimum percentage required as to the intangible’s creation, the Spanish tax authorities fully disregard the application of this exemption if the taxpayer has not created it in any proportion.
✔ In a recent binding resolution (no. 1765 – 20, of June 03), the General Directorate of Taxes depending from the Ministry of Finance denies the application of the “patent box” scheme on a patent that is acquired through a shareholder contribution, the previous intangible owner. The reason to deny it is that it is not clear that the company has created the intangible as it has acquired a patent created by a third party but not ordered it.
✔ It summary, this scheme is conditional to the taxpayer running the risk of the investment made on the intangible asset; that is to say, when the company has the human and / or material resources to produce the intangible as well as when it orders its execution to any third party based on the characteristics procured by the company.
Publicado el 09-2020 por PBS