Royal Decree-Law 3/2016, of December 2, introduced very relevant measures that have led to a significant increase in Corporate Income Tax rates since the 2016 financial year, such as the automatic reversal of impairment losses on shares, or a greater limitation on the offsetting of negative tax bases for entities or tax groups with a net turnover exceeding 20 million euros, among others).
We wish to inform you that the admission for processing of the question of unconstitutionality 2577/2023 in relation to Royal Decree-Law 3/2016, which adopts measures in the tax field aimed at the consolidation of public finances and other urgent measures in social matters, due to possible violation of articles 86.1 and 31.1 CE, has been published in the BOE of July 8.
Since the entry into force of Royal Decree-Law 3/2016, measures have been implemented that have had a significant impact on Corporate Income Tax quotas from the 2016 financial year onwards. These measures have affected numerous taxpayers and tax groups, generating a considerable increase in these quotas.
Among the most notable modifications introduced by Royal Decree-Law 3/2016 are the following:
a) Systematic reversal, through their inclusion in the taxable base of Corporate Income Tax, of the impairment losses on equity investments in entities. This reversal has been applied annually at a minimum of 20 percent during the fiscal years 2016 to 2020, regardless of their accounting treatment and whether or not a recovery of the value of said investments has occurred.
b) Reduction of the percentages applicable to the offsetting of negative tax bases for taxpayers whose net turnover for the previous year is equal to or greater than 20 million euros. These percentages have been reduced to 50% if the turnover is between 20 and 60 million euros, and to 25% if the turnover exceeds 60 million euros.
Furthermore, for these taxpayers, the application of deductions for double taxation of dividends and capital gains, both nationally and internationally, established in the previous Corporate Income Tax Law, has been limited to 50% of the full tax liability.
c) Non-deductibility of losses generated in the transfer of shares in the capital of companies that meet the requirements for the application of the exemption of article 21.3 of the Corporate Income Tax Law.
In the event that Royal Decree-Law 3/2016 is declared unconstitutional, companies and tax groups could recover the fees paid as a result of these measures in non-prescribed tax years.
However, it is important to note that recent rulings by the Constitutional Court on tax matters have limited their effects to those cases in which the declarations affected by the rule declared unconstitutional have been challenged and are not final on the date the effects of the rulings come into force.
In summary, the admission of the constitutional challenge related to Royal Decree-Law 3/2016 has generated uncertainty regarding the measures adopted and their implications for Corporate Income Tax liabilities. Therefore, affected companies and tax groups should assess the impact of this situation and explore possible legal avenues for recovering the tax due should the decree-law be declared unconstitutional.
Our team of tax experts is available to provide you with advice and support on this matter. Please do not hesitate to contact us to discuss how this situation may affect your business and what actions might be necessary.
We appreciate your trust in our services and are committed to keeping you informed about any relevant tax developments that may affect you.
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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