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The corporate purpose of the SOCIMI must be the acquisition and development of urban real estate for lease, holding shares in the capital of other SOCIMIs or in the capital of other entities not resident in Spanish territory, as long as they have the same corporate purpose as the SOCIMI and are subject to a similar regime in terms of the mandatory profit distribution policy; a shareholding in the share capital of other entities, whether resident or not, when their main corporate purpose is the acquisition of urban real estate for rental purposes and they are subject to a similar regime to the one established for SOCIMIs in terms of the mandatory distribution of profits and the investment system for income and assets; and the holding of shares or holdings in real estate collective investment institutions regulated by Law 35/2003.
In addition to the corporate purpose, the essential requirements also include the obligation to distribute a minimum percentage of profits according to their origin. In summary, they must distribute 100% of the dividends from their subsidiaries, at least 50% of the profits from the transfer of real estate or shares and at least 80% of the remaining profits. The shares of the SOCIMI must also be registered shares.
In this regard, in addition to the aforementioned essential requirements, there are those that can be fulfilled within 2 years, which are as follows:
o Minimum share capital: €5 million, which will be represented by a single class of shares.
o Investment and source of income: SOCIMIs are subject to certain requirements regarding the investment of their assets and the obtaining income in the course of their business.
Specifically, SOCIMIs must have at least 80% of the value of their assets invested in:
1. Urban real estate for rental.
2. Land for the development of real estate that is to be leased, on condition that the development is started within three years of its acquisition, since, after this period, the land would not count as an eligible investment for the purposes of assessing compliance with this requirement.
3. Holdings in the capital of other SOCIMIs, or of non-resident listed SOCIMIs or non-listed SOCIMIs resident in Spanish territory or abroad, as well as holdings in the capital or assets of real estate CIIs.
With regard to income, at least 80% of the income for the tax period corresponding to each financial year, excluding income derived from the transfer of holdings and urban real estate, both of which are assigned to the fulfilment of its main corporate purpose, provided that the transfer has taken place after the obligatory maintenance period has elapsed, must be derived:
- The leasing of real estate used for the fulfilment of its main corporate purpose, with individuals or entities that do not fall under any of the circumstances set forth in Article 42 of the Commercial Code, regardless of their residence; and/or
- From dividends or shares in profits from holdings assigned to the fulfilment of its main corporate purpose resident in Spanish territory or abroad, regardless of whether or not, in the case of resident investees that are unlisted SOCIMIs, they have opted to apply the special SOCIMI tax regime.
- Shares admitted for trading: they must be admitted to trading on: (a) a regulated market in Spain, a member state of the European Union, the European Economic Area or a state with which there is an effective exchange of information or; (b) a Spanish MTF (e.g. BME Growth), a member state of the European Union or the European Economic Area.
- Company denomination: the abbreviation “SOCIMI, S.A.” must be included.
Therefore, SOCIMIs that meet the aforementioned requirements may choose to apply the special tax regime provided for in Law 11/2009, of 26 October, which regulates Listed Real Estate Investment Companies (Sociedades Anónimas Cotizadas de Inversión en el Mercado Inmobiliario). This regime involves a general corporate income tax rate of 0%, although there is a special tax rate of 15% on undistributed profits and 19% on distributed profits, subject to certain conditions.
Specifically, the 19% tax is set for the part of the tax base corresponding to shareholders whose shareholding in the company capital of the SOCIMI is 5% or more and where such income is taxed at a rate of less than 10% in the shareholder’s tax base. However, the Law provides that this tax does not apply when the shareholders are themselves SOCIMIs.
The 15% percentage will be applicable to the part of the profits that are not distributed, thereby encouraging the distribution of all profits and not only those required by law.
In relation to the option to apply this tax regime, it must be adopted by the general shareholders’ meeting and communicated to the tax authorities before the last three months prior to the end of the tax year. Notification made outside this period will prevent the application of this tax regime in that tax period.
The special tax regime shall apply in the tax period ending after such notification and in subsequent tax periods ending before the renunciation of the regime is notified.
Another of the benefits of this regime, which affects the indirect taxation, is the 95% tax credit in the Tax on Capital Transfer for the acquisition of properties for rental purposes and the acquisition of land for the development of properties for rental purposes. Provided that they meet the specific requirement of being rented for three years.
Tax regime for SOCIMIs’ shareholders.
It is important to distinguish between the taxation of shareholders depending on whether they are individuals or entities, and it will be necessary to consider both the distribution of dividends and the taxation of income generated from the sale of shares in the SOCIMI.
In the distribution of dividends, shareholders who are individuals resident for tax purposes in Spain will be taxed at the tax rate provided for in the savings tax base in accordance with the Personal Income Tax Law (LIRPF), in the category of income from capital gains, which currently has a tax rate of between 19% and 28%. Capital gains from the transfer of the shareholding in the SOCIMI will be taxed according to the same tax scale.
In the case of resident companies, as well as non-residents with a permanent establishment in Spain, the exemption regulated in Article 21 of the Corporate Income Tax Law in relation to the dividends they receive from the SOCIMI cannot be applied to the part of the SOCIMI’s profit that has been taxed at the corporate income tax rate of 0%. The same regime is applicable in the case of capital gains from the transfer of SOCIMI shares.
Finally, with regard to non-residents, individuals or entities without a permanent establishment in Spain, the corresponding Double Taxation Treaty or, otherwise, Spanish domestic legislation must be followed.
Conclusion
The main purpose of the SOCIMI has been to promote and professionalise the property rental market in Spain, as well as to enable small and medium-sized investors to invest in real estate assets. For this purpose, these vehicles have been provided with a very attractive tax regime, subject to the fulfilment of the aforementioned requirements.
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**The following publication contains general information on tax matters and does not constitute tax advice. This information is provided for informational purposes only and should not be interpreted as specific tax advice for your particular situation. B Law & Tax is not liable for any loss or damage arising from reliance on the information contained in this publication.
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