Through Law 38/2022 on temporary levies, a temporary measure has been approved, which exclusively affects the fiscal years beginning in 2023, which will entail a broadening of the taxable base of Corporate Income Tax (CIT) for tax groups.
We remind you that Law 38/2022, of December 27, has regulated a limitation on the compensation of losses in 2023 in the tax consolidation regime.
Specifically, a temporary measure, which exclusively affects the fiscal years beginning in 2023, which will entail a broadening of the taxable base of Corporate Income Tax (CIT) for tax groups.
According to Article 62.1.a of the Corporate Income Tax Law (LIS), the taxable base of the group is determined by first adding together the individual taxable bases of all the entities. Thus, if one entity generates a positive taxable base and another a negative taxable base, both are offset against each other to form the aggregated taxable base (before the adjustments established by the law) of the tax group.
Change in 2023
Now, the aforementioned compensation is temporarily limited in the year of aggregation of individual tax bases. Specifically, in the 2023 tax year, when aggregating these bases, only 50% of the individual negative tax bases will be taken into account. That is, if, for example, a group has two entities and one of them has a positive tax base of 100 and the other a negative tax base of -100, the result of the aggregation, instead of "0", will be "50".
The amount of unused negative individual tax bases (in our example, 50) will be integrated into the group's tax base in equal parts in each of the first ten financial years beginning on or after January 1, 2024 (i.e., in our example, an amount of 5 will be integrated in each of those periods) even if some of the entities with negative individual tax bases are excluded from the group.
In the event of loss of the tax consolidation regime or dissolution of the tax group, the amount of the individual negative tax bases that is pending integration into the tax base of the group will be integrated in the last tax period in which the group is taxed under the tax consolidation regime.
Attention. This new limitation does not affect the offsetting of negative tax bases from years prior to 2023, but rather the tax bases generated in the 2023 financial year itself by the entities.
One of the first considerations arising from the proposed measure is the potential impact of internal transactions within tax groups. While these groups are legally exempt from the obligation to document transactions between group entities, their status as related parties entails the obligation to value these internal transactions at market prices. However, it is readily apparent that valuation differences can lead to a composition of individual tax bases with varying effects within this limitation. Therefore, it is worth considering whether a valuation of internal transactions that deviates from the general market valuation obligation could give rise to conduct punishable by the tax authorities.
Given this regulation, it is therefore advisable for tax groups to review their transfer pricing policy.
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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