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The Asturias SuperiorCourt (TSJ), in its judgment of June 28, 2023, examines both the implementation of the special regime for small-scale companies starting from the year 2015 and issues related to the depreciation of fixed assets.
Regarding the first issue raised, the Court maintains that there is a clear distinction between the regulation of property leasing as an economic activity before and after the LIS (Corporate Income Tax Law), which has been applied by the Tax Inspection. For the year 2014, when there was no rule determining when a company engaged in property leasing carried out an economic activity, the tax incentives for small-scale companies claimed by the appellant are denied for the years 2015, 2016, and 2017.
In this case, the plaintiff did not employ external workers in the years 2014, 2015, 2016, and 2017, nor has it demonstrated that it subcontracted the management of leases to a third party with an expense comparable to the salary of a full-time employee. Simply having a high number of lease contracts is not sufficient to consider the activity of property leasing as economic. This is contrary to Article 5 of the LIS, and the plaintiff’s position cannot be supported.
The plaintiff argues that all responsibilities associated with the employee are carried out by the administrator personally and a group of external professionals. Real estate agencies are responsible for setting prices and rental conditions, while another entity handles all tax obligations, the submission of annual financial statements, and contract drafting.
However, the use of a real estate agency to interact with potential clients or the hiring of tax advisors to manage accounting and tax aspects of the business are not exclusive to conducting an economic activity; they can also apply to patrimonial (asset-holding) companies.
Consequently, Article 5 of the LIS establishes the minimum requirement of hiring at least one full-time employee with an employment contract (either directly or through subcontracting), a requirement that the plaintiff does not meet, as explained earlier. Therefore, this objection must be rejected.
Regarding the depreciation of fixed assets, the analysis begins by considering the possible determination of the proportion of the flight value concerning the market value of the disputed property. It is deemed that Article 3.2 of the Corporate Income Tax Regulation provides an alternative method to determine the part of the acquisition cost related to construction through a different distribution method based on the proportion between the cadastral values of the land and the construction.
The Court points out that exceeding the maximum depreciation limit is a reason for the tax authority to review the depreciations made. This has been done through the procedure established in Article 3.2 of the Corporate Income Tax Regulation, so this argument is rejected.
As for the depreciation base, it is confirmed that all expenses related to the purchase of a property, which the buyer has incurred at the time of acquisition, are part of the acquisition value. Therefore, the €29,591.84 paid in 2016 as a surplus value (IIVTNU) for the acquired assets are considered an increase in the acquisition value of the properties. This deduction is based on the plaintiff’s accounting, which did not record any debt for this concept, and there is no perceived unjust enrichment, as the surplus value tax is a municipal tax.
Finally, concerning the sanctioning procedure, the imposed penalty is annulled. The plaintiff’s actions in its tax affairs should be corrected through the tax settlement, but it does not justify a penalty, as there is an exemption from responsibility due to a reasonable interpretation of the complex applicable tax regulations.
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