Characteristics of the Anonymous Society
In relation to the characteristics of the anonymous company (S.A.) it is a commercial company whose capital is divided into shares, supplemented with the contribution of the shareholders, who will not personally respond to the social debts contracted but will do so with the capital provided.
The minimum number of members is 1 and the minimum initial capital is 60,102 euros, fully subscribed and paid for 25% (the remainder does not have a legal term, will be determined in the bylaws).
If an anonymous company is established with a single shareholder, this must be reported in all documentation, correspondence, invoices and legal announcements (S.A.U.). The change of the single member and the loss of the condition of uniqueness of the member must be reported in writing and inscribed in the register of companies.
If the company acquires the status of a member’s personality and after six months without being registered in the business register, the sole member will personally and independently respond to the social debts contracted during the period of one personality.
You can bring goods or rights with economic value. These transactions must be the subject of a report drawn up by an expert appointed by the Register of Companies, which must be incorporated in the deed of incorporation, or possibly capital increase.
With regard to the transfer of shares, the restrictions on the latter will be valid only if they are registered shares and are expressly provided for in the Articles of Association. Free transferability may be subject to the authorization of the Company only when the Statutes regulate the causes that allow it to refuse such authorization.
The general rule states that decisions are adopted by a majority of valid votes. The statutes can increase the required majority thresholds. Each ordinary share gives the right to cast only one vote even if the by-laws can limit the maximum number of votes that only one shareholder can exercise.
The statutes must establish the administrative body among the following: the sole director, two or more directors who jointly and jointly answer, or a board of directors consisting of a minimum of 3 and a maximum of 12 directors. A change in the way the company administration is organized will require a statutory change.
Before proceeding with the distribution of profits, it is a legal requirement to apply the legal reserve equivalent to 10% of the profit, at least until the aforesaid reserve reaches 20% of the share capital.
The name of the company must incorporate the abbreviation “S.A.”.
Starting September 1, 2010, these companies are governed by the law on joint-stock companies, which derogates from the legislative decree 1546/1989, to which was added the text of the law on anonymous companies.
ADVANTAGES
Open Society. Members can freely sell their shares and the company can be listed on a stock exchange.
The responsibility of the members is limited. It can thus protect its personal assets.
Good image in front of third parties.
Only one member can make it.
DISADVANTAGES
This is a constitution similar to that of the limited liability company, unless “non-monetary” contributions are made to the share capital, in which case a report by an expert appointed by the business register is required.
An initial share capital of 60,102 euros is required (fully subscribed and paid for 25%).
More rigorous and rigid in its operation.
Intended for the treatment of business with a large number of partners or with large investors.
Constitution of a Limited Liability Company in SPAIN (S.L.)
Minimum Share Capital. Minimum capital is set at € 3,000. 100% of the share capital must be deposited with the bank at the signing of the deed of incorporation. The shares cannot consist of shares but of holdings.
Minimum number of members. The possibility of establishing a single member is envisaged. There is no maximum number of members.
In the case of members who are natural persons of Italian nationality, the request of N.I.E. (Foreign Identification Number for Spain) in the Spanish Administration. The number must be requested personally by the member.
In any case the obtainment of N.I.E. it is absolutely necessary for the purpose of signing the deed of incorporation into a Spanish notary.
Required documents:
- Original passport in force.
b Identity card in force.
In the case of an Italian legal entity (S.R.L./S.P.A.) In addition to the request of N.I.E. the consular certification or the notary certification certifies that the company director is able to establish or establish a limited liability merchant company in Spain, setting his share capital, object, domicile, duration, staff and administrative structure with the faculty of drafting and approving their own statutes and signing participations in the deed of foundation. The certification must use the Apostille de La Haye and will be translated into Spanish by a sworn translator. Furthermore, it would also be necessary to obtain a special VAT number for the Italian company.
Administrative body. Our law allows the possibility of appointing sole director, shareholders with joint or separate signatures also as board of directors.
Responsibility. The liability of the members is limited to the capital conferred therefore in the limited liability companies the society only responds with its assets for the social obligations. The bankruptcy of the company does not extend to the members. As far as the administrative body is concerned, the responsibility finds its source in the non-fulfillment of the duties imposed on the aforesaid by the law or by the deed of incorporation, or in the breach of the general supervision obligation or the equally general obligation of preventive intervention and subsequent.
Requirements for the constitution.
- Choice of company name. Request for a company name in the Register of Companies.
- Version 100% of share capital in the bank and further obtainment of the certification of deposit.
- Stipulate of the deed of incorporation, this is reached through the agreement between the shareholders who decide between themselves the conditions and social pacts and with the intervention of a Spanish notary who gives the agreement the value of a public deed. In the deed of incorporation, the statute of the company must be attached, which is the document that regulates the relations between the members, the structure of the company and its operation. In the case of contributions in kind, movable or immovable property, or in credits by the shareholders, the contribution must be accompanied by a sworn estimate report drawn up by the administrator, which will then be verified by an expert appointed by the Registry. This report, to be attached to the deed of incorporation, must contain the description of the individual assets or credits conferred and the value attributed to each one.
- The company’s VAT number is required.
- Presentation of property transfers in the Tax Administration.
- Enrollment of the company in the Register of Companies also in the Register of Foreign Investments.
In any case, the Firm provides continuous personalized assistance and manages the preparation of the N.I.E., Name Sollecito, Statutes, Notary, Tax, Foreign Investment Declaration, Part I.V.A. and Registration of Acts, turnkey.
Labor Legislation and Social Contributions
Labor relations in Spain are basically governed by the Workers ‘Statute and by the collective agreements, which are negotiated between employers and workers’ representatives, and are mandatory for both parties.
The fundamental points of labor law can be summarized as follows,
Remuneration. There are certain limits, the minimum wage, set each year by the government, amounts for this year 2018 to € 735.90 per month. Collective agreements are approved each year by sector of activity, which improves the minimum salary quoted and sets salaries according to the professional category. In most cases, workers are entitled to at least two additional wages, so the annual gross pay is divided into fourteen monthly pay, the aforementioned extra wages throughout the year.
Working time. The working week is, by law, a maximum of 40 hours per week of actual work, a promised total of hours worked during the year. The working day cannot exceed 8 hours per day, unless the agreement foresees, by collective agreement or agreement between entrepreneurs and workers’ representatives, establishes a different distribution of the daily work time, respecting in any case rest breaks minimum working days of at least 12 hours.
The extra hours cannot exceed 80 per year.
The annual holidays are, in a year of service, 30 calendar days including working days and holidays. Moreover, during the year, 14 national holidays are recognized, of the Autonomous and local communities.
Work contract. The employment contract can be stipulated for a fixed term or indefinite. In this case, the entrepreneur cannot terminate it unilaterally, unless one of the causes indicated in the Workers’ Statute occurs, ie by dismissal for a justified reason, determined by a serious and guilty breach by the worker. If these reasons do not occur and the dismissal is considered arbitrary, the employer is obliged to compensate the employee with the equivalent of 45 days of remuneration for each year of service, with a maximum of 42 months.
The dismissal will be declared void for the following reasons:
– When one of the causes of discrimination prohibited by the Constitution and the Law is used as a reason.
– When the fundamental rights and public liberties of the worker are violated.
Likewise, the dismissal of personnel who have permits and leave provided for by the law to promote reconciliation between family and working life (reduction of the day to care for family members, suspension of the contract for pregnancy, etc.) may be considered arbitrary or null.
The consequence of the nullity of a dismissal is the readmission of the worker.
The law allows to terminate the employment contract when there are objective causes expressly provided for, having to fulfill the following requirements:
- a) Written and motivated communication to the worker, of dismissal.
- b) Making available to the worker, upon delivery of the written communication, an allowance equal to 20 days of salary per year of service, with a limit of 12 months, in the case of dismissal in progress. In the event that the judge declares the dismissal not proceeding, the indemnity will be 33 days for each year of service.
- c) Grant of a 15-day notice calculated from the delivery of the personal communication to the worker until the termination of the contract.
In addition to the indefinite contract, there are other forms of employment that allow greater flexibility:
- Part-time contract with benefits for a certain number of hours per day, per week, per month or per year less than the comparable full-time day.
- Fixed-term contract for specific jobs or services, for temporary work, for any production work, replacement contract and fixed batch.
- Apprenticeship contract: it can be stipulated with those in possession of a university or vocational qualification of a medium or higher degree, or officially recognized qualifications as equivalent to a profession, in the four years immediately following the conclusion of the studies.
- Traineeship contract: its purpose is the acquisition of a theoretical and practical training necessary for the proper development of a professional qualification.
Social contributions. Contributions are paid in part by the employer and partly by the employee. The personnel is professional, in order to determine the charges to be borne. Each category has a minimum level and is usually updated every year.
Currently, the professional categories have the following minimum and maximum bases (€ / month):
| Categories | Minimum Base | Maximum Base |
| 1. Engineers graduates, managerial staff | 1.199,10 | 3.751,20 |
| 2. Technical Engineers, Surveyors, Graduates aides | 994,20 | 3.751,20 |
| 3. Administrative and factory management | 864,90 | 3.751,20 |
| 4. Assistants without a diploma | 858,60 | 3.751,20 |
| 5. Administrative employees | 858,60 | 3.751,20 |
| 6. Subordinates | 858,60 | 3.751,20 |
| 7. Administrative aid | 858,60 | 3.751,20 |
| Categories | €/day | €/day |
| 8. Qualified workers (cat.1ª e 2ª) | 28,62 | 125,04 |
| 9. Qualified workers (cat.3ª) | 28,62 | 125,04 |
| 10. Unskilled workers | 28,62 | 125,04 |
| 11. Workers under 18 years old | 28,62 | 125,04 |
Contributing costs for the employer and the employee are:
| Payable by the employer | Dependent on the employee | Total | |
| General | 23,60 | 4,70 | 28,30 |
| Unemployment | 12,00 | 2,00 | 14,00 |
| Professional training | 23,60 | 4,70 | 28,30 |
| Wage guarantee fund | 23,60 | 4,70 | 28,30 |
These percentages can be increased according to the risk of accidents deriving from the company’s activity. The main benefits of Social Security are medical and pharmaceutical services as well as economic benefits intended, inter alia, to the following situations: maternity, danger during pregnancy, permanent disability, retirement pension, family, health, unemployment, training and occupational diseases.
Social situation of foreigners.
There are two different schemes:
From 1 January 1992, citizens of EU member states, according to Community rules, can work in Spain on the same terms as Spanish citizens. They do not need to obtain any work or residence permit, only the N.I.E.
Non-EU citizens can be in Spain in different situations:
- Permanence: the general rule allows you to stay in Spain for up to 90 days, unless you obtain an extension or a residence permit.
- Temporary Resumption: allows a stay of up to 5 years. It is normally granted when it proves to be in possession of sufficient financial means or an offer of job contractor.
- Permanent Resumption: for those people who have obtained a temporary residence for 5 years, it allows to work on the same conditions as Spanish citizens.
The current legislation on the rights and freedoms of foreigners in Spain and their social integration regulates their rights, including those of association, assembly, access to education, social security and health, on the same terms as the Spaniards. Other recognized rights are those of voting in municipal elections for residents, working in the public administration and the right to family reunification.
Liability for businesses. The administrative and management bodies of companies may incur liability in the event of non-payment of the shares to the Social Security, failure to implement the rules relating to safety and hygiene in the workplace, fraudulent subcontracting, etc., for which it is necessary to rely on specialized legal assistance. Law 31/95 concerning the prevention of risks at work and the complementary rules which establish different penalties for the non-inclusion of a correct prevention activity in the company are of fundamental importance. It must not be forgotten that at present for the labor inspectorate it is a matter of primary importance.
Special contracts.
Due to their special characteristics, there are contracts with specific regulations, such as sales representatives. The personnel involved in the purchase and sale operation as a mediator apply the Agency Contract Law 12/1992, which determines the establishment of a commercial relationship and which is in harmony with the Community Directives relating to Sales Agents.
Corporate books
Companies must keep the following records:
- Register of Minutes, general assemblies, as well as those of the board of directors.
- Book of Members, mandatory for the limited liability company, in which to register the original ownership and subsequent transmissions of social shares, as well as the constitution of the real rights and obligations on them.
The Social Books must be authenticated in the Business Register.
Legal and accounting requisites.
Spanish legislation has undergone major changes to adapt it to EU directives. The most important provisions concerning legal and accounting requisites are discussed below.
- Legal requirements. The companies must be registered in the Business Register. This Registry legalizes the company’s books, the filing of accounts and the publication of accounting documents. The Registry is public. The publicity of documents can take place in different ways:
– Issued by the Registry
– Informational memorandum
– Copies of the registration or documents deposited.
Issuing a certificate is the only way to credit all the contents of the documents deposited in the Register. The companies have the obligation to indicate the details of the registration in the invoices, letterheads, etc.
- Accounting Requisite. International accounting standards (IAS) and international financial reporting standards (IFRS) are mandatory in Spain. All entrepreneurs are required to have adequate accounting, in order to follow all the operations chronologically and to periodically draw up inventories and balances.
The obligatory books are those of the inventories and annual accounts and the journal.
Accounting must be certified before the four months subsequent to the exercise date have expired. To certify it there are two procedures: prior certification to the use of bound books, or certification after their use. In this case, when the accounting is carried out through IT support, they will be able to be certified in the Business Register by submitting them in one of the following formats: printed and printed on paper, in electronic format or through online communications procedures.
The books and accounting documents must be kept for six years from the date of the last writing made.
The annual accounts, which include the financial statements, the income statement and the annual report, must be prepared by the company’s management body within three months of the end of the financial year.
The annual accounts and the management report must be filed in the Business Register during the month following approval by the General Assembly.
The annual accounts must be kept according to the principles of the Fourth EU Directive:
– caution
– a functioning company
– recording
– purchase price
– competence
– correlation of revenues and costs
– no compensation
– uniformity
– relative importance.
Please note that the General Spanish Accounting Plan must be applied in all companies of any legal form.
Direct taxes
Company income tax. Company income tax applies to the whole territory without interfering with special territorial regimes, and with international agreements and treaties.
The Tax Authorities in Spain are taxable persons of Tax.
Institutions residing in Spain are considered to be those that have one of the following requisites:
- Those established in accordance with Spanish laws.
- Those who have a domicile in Spanish territory.
- Those that have the seat of effective management in Spanish territory.
The tax administration may presume that institutions located in tax havens or in the areas of zero taxation have their place in the Spanish territory if their principal assets consist of assets
situated or rights that are fulfilled or are exercised in the Spanish territory, or if their main activity is developed in this territory.
Resident bodies are taxed on the total income, regardless of where they are produced and the residence of those who correspond to them.
Small companies with a net annual invoicing amount of less than 10 million euro will be able to apply a 15% rate in the first year to the tax base part between 0 and 300,000.00 euros, while the rest will apply %.
If the taxable amount is negative, the amount can be offset within the tax periods ending in the 15 years immediately after the one in which the loss originated, distributing it according to the proportions deemed appropriate by the company. For newly established institutions, the 15-year term will start from the first tax period whose taxable base is positive.
Temporary imputation of revenues and expenses. Revenues and expenses must be recognized in the tax period in which they will mature, according to the actual flow of goods and services that they represent, regardless of the moment in which the monetary or financial flow occurs, respecting the due correlation between the two. .
Exceptionally, provided that it is justified and accepted by the tax administration, if they can use different imputation criteria.
Evaluation of revenues and expenses. Revenues and expenses are calculated at book value, provided that the accounting reflects the effective financial performance of the company. Nevertheless, when dealing with transactions between persons or entities subject to restrictions, there are certain cautionary rules; so these transactions must be valued for their normal market value. The Administration has the right to verify that the transactions between persons or entities are assessed for their normal market value, and to carry out the appropriate evaluation corrections, taking into account all the persons or entities that have completed the operation, in order to avoid the taxation of a higher income compared to that actually derived from the transaction for the persons or entities that have performed them. The assessment of the transaction must have adequate documentary support.
In addition, the deduction of expenses for services between restricted entities is conditional on the fact that the services produce an advantage or benefit to the recipient. With regard to the deduction of expenses arising from a cost allocation agreement between the restricted parties, it is necessary that the participants access the property or other similar right on the object resulting from the agreement, since the breakdown should depend on the utilities or expected benefits for each of them.
It is possible to submit to the Tax Administration a proposal for the assessment of the transactions carried out between the companies subject to constraints prior to their implementation.
The depreciation. The depreciation must have two basic requirements: be effective or accounted for. The tax payer must prove the effectiveness of the depreciation, and to overcome this difficulty, the devaluation is considered to be considered when the share is adjusted to one of the following methods:
- a) Official tables of linear depreciation. The amortization tables, incorporated into the Royal Decree no. 1777 dated 30 June 2004, indicate a maximum rate and a maximum period of time in which the taxable person can amortize. The minimum linear share is that necessary to cover the value of the asset to be amortized over the maximum amortization period set in the table.
Examples:
| Maximum rate | Minimum Rate | Maximum Period | |
| Industrial properties | 3 | 1,47 | 68 years |
| Commercial real estate | 2 | 1,00 | 100 years |
| Office furniture | 10 | 5,00 | 20 years |
In cases where the capital goods are used in more than one normal work shift, or are bought used, it is possible to increase the rates.
- b) Regressive depreciation. Buildings, furniture and furnishings cannot enter this system of amortization. There are two possibilities: constant percentage on the value to be amortized and the “digiti” method, etc.
- c) Other methods of depreciation. Companies that, for technical and economic reasons, want to depreciate their asset components at rates other than those set out in the official tables and want to avoid the risks of demonstrating “effective” depreciation, can request the prior approval of the tax authorities special depreciation tables.
- d) Freedom of depreciation. They will be able to amortize freely:
– The elements of the immobilized material, inmaterial, excluding buildings, subject to research and development (R + S). Buildings will be amortized, for equal parts, over a period of 10 years, for the part in which they are linked to R & D activities.
– R & D expenses present in assets as intangible assets.
- e) Amortization of financial goodwill. The tax deduction over the 20-year period of the amortization of financial goodwill is possible, provided that they are satisfied, substantially that it was declared on the occasion of the purchase, for consideration, of investments of non-resident companies.
Provisions. The provisions that are duly accounted for are considered deductible, provided they have the tax requirements set for each of them.
Furthermore, the quantities applied to:
– provisions for insolvencies.
– provisions for the write-down of securities.
– extraordinary fund for repair, only for certain sectors or prior plan submitted for approval by the Administration.
– provisions for liability actions.
– provisions for devalued phonographic and audiovisual editorial holdings.
– commissions for covering repair and overhaul guarantees and accessory expenses for returns.
Deduction for reinvestments of extraordinary profits. The income obtained with the onerous transmission of elements of tangible and intangible assets linked to economic activities, securities, and values involving a share of not less than 5%, all owned, at least one year in advance, give the right to a deduction in the tax quota of 12% of such income, provided that the amount of the transfer is reinvested in the legally determined term and in the legally required assets.
The assets that are the subject of the reinvestment must remain in the assets of the taxable person for a period, determined by law, of five or three years in the case of movable property, except in the case in which the residual life of the asset is lower. The transmission of the assets subject to the reinvestment before this period implies the loss of the possibility of deduction.
Tax incentives for small businesses. There is a special tax regime of incentives for small companies (pymes), considering those with a net turnover of business of less than 10 million euros per year, in the period immediately prior to tax.
The incentives, in addition to the aforementioned reduced taxation of 25% for the first 300,000.00 euros of the tax base and 30% for the rest of the taxable amount, are:
- Freedom of amortization, provided that it is accompanied by the creation of a job or the elements of the fixed assets whose unit value does not exceed € 601.01, up to the limit of € 12.020.24 referred to the tax period.
- Accelerated depreciation, multiplying by 2 the maximum linear rate provided for in the official depreciation tables.
- Additional provision for possible debtor defaults up to a limit of 1% of debtors’ balance at the close of the financial year.
- The assets in which the investment of the total amount obtained in the transmission of elements of tangible assets is materialized can be amortized in accelerated form, multiplying by 3 the maximum linear depreciation coefficient envisaged in the official tables.
Tax deductions
- a) Deduction for domestic double taxation: dividends and capital gains. Double taxation of dividends occurs when a company’s income is part of its tax base and then distributed as a dividend. The dividend company, as well as the company that receives it, is therefore burdened by the income tax on the Company when it includes this dividend as income in its tax base. In order to avoid this double taxation, a reduction of 50% of the proportional part that corresponds to the tax base derived from these dividends or investments is envisaged for certain parties. In some cases, this reduction can go up to 100%.
Similarly, when the transmission of a shareholding in the capital of another resident company generates positive income that must be paid, the transmitting company may exercise the corresponding deduction to avoid internal double taxation, given that the capital gain produced includes the benefits not distributed during the period of possession of the investment, already subject to tax in the investee company provided that the requirements for participation are included.
- b) Deduction for international double taxation. This deduction seeks to avoid both legal and economic double taxation. The double legal imposition is produced when a tax of the same taxable person is burdened in two different countries. The double economic imposition is produced when the same tax is imposed on two different taxable persons in two different countries.
1.Deduction for taxes paid abroad: Double legal imposition. The Company Tax legislation allows the lower of the following two quantities to be deducted:
– The tax of a similar nature paid abroad
– The tax that should be paid in Spain, if the income was received in this country.
2.Deduction for income obtained through permanent companies abroad: double legal imposition. Income obtained through permanent establishments abroad are exempt from taxation in Spain; for this reason the permanent establishments will have to obtain subject and not exempt income at a tax similar to the tax on the
Company, do not return to tax havens and implement business activities.
- Deduction for dividends, in participations in profits and capital gains: double economic taxation.
3.1. Imputation method. In cases where the income is a dividend paid by a non-resident company, the receiving resident company may deduct the tax actually paid by the non-resident company for the part corresponding to these dividends. It is also considered that the tax paid by the subsidiary for investee companies and for those which, in turn, are directly owned by them, and so on, in the part attributable to the profits on which the dividends are paid.
This deduction has a limit that is linked to what was said at the beginning of this paragraph: the sum of both cannot exceed the tax that would have to be paid if these revenues were obtained in Spain.
3.2. Exemption method. In certain cases, dividends and capital gains from abroad are exempt from corporation tax. The so-called “exemption method” is thus called, which is an alternative method to the previous one.
Withholdings and fractional payments.
Certain income derived from taxable persons subject to corporate tax are subject to withholding tax on corporate tax. The percentage of withholding tax is, in general terms, 18%, although it may vary according to the type of return. Moreover, in the first twenty days of April, October and December, companies must pay an advance for the current year on the first day of each of the months indicated, of 18% of the share of the last financial year closed and of which expired the term of the declaration on the dates mentioned, less deductions and applicable rebates and withholding taxes.
There is also the possibility of paying down payments on the portion of the tax base for the first three, nine or eleven months of each natural year. The percentage will be the result of multiplication by 5/7 of the type of rate, rounded by default. This method is mandatory for companies whose volume of transactions exceeded 10,000,000.00 euros during the twelve months prior to the date on which the tax period began.
Withholding taxes and split payments may be deducted in the corresponding Company Tax declaration for the corresponding year and, in the event that the final taxes payable are exceeded, the entity is entitled to request reimbursement of excess payments made during the tax period.
Consolidated Statement.
When a company resident in Spain exercises control over another or other companies that are also resident, the group may pay the Company Tax collectively, upon notice to the Ministry of the Economy and Finance, provided that the parent company holds , directly or indirectly, at least seventy-five percent of the share capital of the company or subsidiaries.
Indirect taxes
Value added tax (VAT). VAT is a tax that is applied to consumption in general and which affects the following operations: delivery of goods, provision of services, intra-Community acquisitions of goods and imports.
The general rate is 21%.
The reduced rate of 10% is applied to the supply of goods or services of specific services, such as:
– Certain food items
– Water
– Graduated lenses and medical material
– Housing in general
– Restaurants
The 4% rate applies, inter alia, to the following products:
– Bread, cereals, milk, cheese, eggs
– Medicines and other pharmaceutical products
– Books, newspapers and magazines