B Law & Tax
24 July 2023

Tax advisor: Can the remuneration of the partner/administrator/empowered be deducted if it is duly registered and supported by documents?

The contested ruling holds that even if the spouses do not perform the activities invoiced and the partnership hires third parties for such activities, the same conclusion cannot be applied to them due to their status as absolute owners and controllers of the partnership, which precludes considering their relationship as an employment relationship. The Supreme Court has previously established that the remuneration expenses of a non-director majority shareholder are deductible for corporate income tax purposes, provided that they comply with the accounting, accrual and supporting documentation requirements. Despite the fact that the accounting, accrual and supporting documentation have not been questioned, the deduction is rejected, arguing that the relationship between the non-director majority partner and the company is not unrelated, which is ineffective to exclude the correlation with the business activity or to consider it as a liberality or remuneration of the shareholders’ equity.

However, this case presents particularities, since one of the partners is the sole director of the company and it is established that the requirement of article 220 of the TRLSC, which requires the agreement of the general meeting to establish or modify service provision relationships between the company and one or more directors, is not met. In addition, on previous occasions the impact of the lack of certain resolutions of the general meeting on the deductibility of similar expenses has been analyzed. The issues of interest in this case are to determine whether the remuneration expenses of shareholders who are also administrators or attorneys-in-fact, derived from services rendered in favor of the company’s business activity, are deductible for corporate income tax purposes, as long as the accounting, accrual and supporting documentation requirements are met. Likewise, it should be determined whether the answer to the previous question should be modulated when there is no resolution of the general meeting required by Article 220 of the TRLSC to establish or modify service provision relationships between the company and one or more administrators.

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