Tax advisor: Is the special leasing regime applicable even if some of its requirements are not met?

In the present case, the High Court of Justice of the Principality of Asturias analyzes whether or not to apply the financial leasing regime, also known as leasing for corporate income tax depreciation purposes.

This regime is a medium and long-term financing option whereby the owner of an asset assigns to a third party the right to use this asset in exchange for an established compensation or payment. Several requirements are necessary to qualify for it.

If you want to enjoy the financial leasing regime, you have to comply, for example, that the financial leasing installments are expressed in the respective contracts, establishing a difference between the part corresponding to the recovery of the cost of the leased asset by the acting entity, not including the value of the purchase option, and also including the financial charge required for the same, all this being an application of the corresponding indirect taxation without prejudice to this.

In addition to this requirement, it is also required that the amount of the year of the part of the finance lease payments that corresponds to the recovery of the cost of the asset be equal or greater throughout the period in which this regime is contracted or established. Said requirement, in the case presented is not considered to have been completed, therefore it is considered incomplete by the challenged action.

The regime must be subject to a strict interpretation, since it regulates tax benefits not contemplated for the other contracts that are financial leases.

After an analysis of all the requirements and their fulfillment, it is appreciated that the first of the installments to be paid in all the contracts is considerably higher than the following ones and, in addition, the annual amount of the leasing installments of the cost recovery has not remained the same or increased, it is established that the requirements are not fulfilled, and therefore the criterion of the liquidation practiced must be confirmed for this concept.

B Law & Tax International Tax & Legal Advisors.

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