Spain: The Spanish Central Tax Court has issued a recent resolution changing its criteria and confirming that pension funds should not be considered as a taxable person for VAT purposes

01 Oct 2021    1 minute read
VAT

In brief

In this resolution, the Spanish Central Tax Court, applying the criteria stated by the ECJ judgments such as C-60/90 Polysar, C-80/95, Harnas & Helm and C-155/94 Welcome Trust, considered that the income obtained from dividends, fixed-income securities or from the transfer of security titles should not be considered as compensation for VAT purposes subject to VAT, when the entity that holds those titles does not intervene in the management of those titles.

Contents

The particular case is a pension fund. This type of entity without legal personality does not perform any business activity for VAT purposes and just holds the ownership of different financial assets in order to obtain the income generated by them (dividends, interests, etc.). However, there is another autonomous entity in charge of the management of the investments made by the participants in the pension fund.

Therefore, the dividends and the profitability of titles of rent are outside of the VAT scope, provided that they are not a compensation for any business activity subject to VAT. The same conclusion should be reached regarding the income obtained from the transfer of securities when they are obtained by entities that do not participate in the management of the entities involved, that is, that they do not supply services or do not participate in the trading of those securities.

The pension funds do not perform a business activity by themselves, arranging all the necessary means and not intervening in the production or distribution of goods or services. They are a separate and independent entity from the entities that manage it, without legal personality and is owned by its participants but managed by an entity contracted for these purposes. The conclusion is that pension funds should not be considered as a business for VAT purposes and, therefore, that the income obtained by dividends, interest, etc., should not be included in their volume of operations.

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We remain at your disposal for any consultations or clarifications regarding this alert, and we will keep you informed of any future changes regarding these issues as they become available.

Contact Information
María Antonia Azpeitia
Partner
Madrid
mariaantonia.azpeitia@bakermckenzie.com
Antonio Albarran
Counsel
Madrid
antonio.albarran@bakermckenzie.com
Jorge Gomez Alguacil
Special Counsel
Madrid
jorge.gomezalguacil@bakermckenzie.com
María Delso
Mid-Level Associate
Madrid
maria.delso@bakermckenzie.com

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