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The Supreme Court was asked to determine whether the refusal to apply the exemption set out in article 7p of the Spanish Personal Income Tax (PIT) Law to an individual for work carried out abroad, based on their status as director, is in accordance with the law. The Supreme Court has decided that directors can benefit from this exemption in respect of the salary they receive as a director because the law only provides that the "work" must be performed abroad for the exemption to apply; there is no requirement that the work is performed under an employment or statute-based relationship.
This judgment opens executive compensation planning opportunities and the possibility to claim the refund of the PIT amounts covered by such exemption for the FYs that are within the statute of limitations period (i.e., four years) if all the requirements are met.
Spanish tax residents are entitled to an exemption of up to EUR 60,100 per year in their tax return for employment carried out outside Spain if the following conditions are met:
The Spanish Tax Authorities ruled that the salary income received by directors cannot benefit from certain incentives that the PIT Law allows, as these are only applicable to those who have an employment or statutory relationship. This is one of the conclusions reached in relation to the exemption for work performed abroad.
In previous judgments, the Supreme Court has also concluded that the expression "employment income for work actually carried out abroad" contained in article 7p of the PIT Law cannot be applied to income received for participating in board meetings at nonresident entities (i.e., the foreign subsidiary). Therefore, the exemption cannot be applied in such cases due to the lack of proof of the added value generated for the foreign subsidiary. However, the Supreme Court did not analyze different cases such as the provision of other services by directors to foreign subsidiaries.
1. Tax audit
2. National Court judgment dated 19 February 2020
The company appealed TEAC's resolution before the National Court. The National Court ruled in favor of the company, basing its argument on the fact that article 7p of the PIT Law by itself does not specify or differentiate between employment income by its nature and by its legal provision (i.e., the remuneration of directors). Therefore, there is no legal basis to sustain the restriction imposed by the tax audit and confirmed by the TEAC.
However, one of the members of the court had an opinion that differs from the criteria of the ruling. They argued that this exemption is not applicable to all employment income and that the stipulation in article 7p of the PIT Law only refers to employment income derived from a labor or statutory relationship, starting from the condition of an employee. Therefore, it is not applicable to directors.
3. Supreme Court Judgment dated 20 June 2022 – relevant criteria
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