BackTax law experts highlight the considerable uncertainties generated by the tax treatment of compensations granted to members of the board of directors, demanding greater legal certainty in this area. This need for certainty is shared both by managers of these entities and by professionals specialized in tax matters. The lack of clarity in tax legislation regarding the remuneration of directors in Sociedades Anónimas Cotizadas de Inversión Inmobiliaria (Socimis) not only causes confusion but also poses risks to the investment decisions made by these administrators and directors.
During the “Updates on Socimis’ Boards for 2024” conference, held recently in collaboration with the Spanish Association of Sociedades Anónimas Cotizadas de Inversión en el Mercado Inmobiliario (Asocimi), participants expressed a call for greater legal certainty regarding the tax treatment of Sociedades Anónimas Cotizadas de Inversión Inmobiliaria (Socimis). Additionally, it was highlighted the pressure exerted by the Tax Agency on the administrators of these entities.
In this context, it has been observed that the Tax Inspection has taken advantage of deficiencies in the regulations to launch a scrutiny campaign aimed at these companies. It has been noted that the positions maintained by the Administration in this area have been subject to considerable questioning, with some of them being highly debatable. In line with this situation, it has been emphasized that courts have begun to neutralize these positions.
Regarding the Value Added Tax (VAT) applicable to remunerations, reference has been made to the jurisprudence of the Court of Justice of the European Union, which establishes that an individual exercising functions as a member of a board of directors is carrying out an economic activity involving the provision of an onerous service to the company. However, such activity is not subject to VAT because it is not carried out independently.
On the other hand, in the case of a legal entity, such as a professional management company, the application of VAT is recommended in all relevant transactions.
On his part, the president of Asocimi highlights the pressing need for a regulatory framework that adapts to the specific characteristics of Socimis. The president points out the lack of regulation tailored to the idiosyncrasies of this sector, noting that other industries may be saturated in this aspect.
In this context, it is emphasized that fiscal uncertainty and its potential impact on governance and civil responsibilities constitute the main concerns for Socimis, highlighting the need to address these aspects through specific and appropriate regulations tailored to the particular characteristics of these entities.
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