The obligation to provide information to the tax administration is an essential element for the proper implementation of the task entrusted to it. For these purposes, Article 93 of the Law 58/2003 of 17 December, General Tax, constitutes the regulatory framework which generally configures that obligation.

Within this scope, this royal decree regulates two matters. First of all, the reporting obligations that certain entities will have to assume in respect of the issuance of preference shares and other debt instruments are required. In fact, paragraphs 3 and 6 of the second provision of Law 13/1985 of 25 May 1985 of investment coefficients, own resources and information obligations of financial intermediaries, in accordance with the wording laid down Under Law 19/2003 of 4 July on the legal regime of movements of capital and economic transactions with the outside world and on certain measures to prevent money laundering, certain entities have the the obligation to report the issues of its subsidiaries of preferred shares and other debt instruments, as well as the identity of the holders of the securities issued.

Second, the Ecofin Council, at its meeting on 3 June 2003, approved the so-called "tax package", which is integrated by Council Directive 2003 /48/EC of 3 June 2003 on taxation of the income of the savings in the form of interest payments, Council Directive 2003 /49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States, and the Code of Conduct.

The ultimate objective of Directive 2003 /48/EC is to allow savings income in the form of interest paid in one Member State to tax-resident natural persons in another Member State to be subject to effective taxation, in accordance with the legislation of the latter Member State. To this end, the Directive has chosen to establish an automatic information exchange mechanism between Member States ' tax administrations.

With this royal decree, certain information obligations are required in relation to the issuance of preference shares and other debt instruments and the Directive is incorporated into the domestic legal order. 2003 /48/EC, to which end Royal Decree 2281/1998 of 23 October 1998, implementing the provisions applicable to certain obligations for the provision of information to the tax administration and amending the Regulation of pension schemes and funds, approved by Royal Decree 1307/1988 of 30 September 1988, and the Royal Decree 2027/1995 of 22 December 1995 regulating the annual declaration of transactions with third parties.

The transposition into national law of Directive 2003 /48/EC, in application of the mandate contained in Article 17 thereof, is supplemented by the provisions of Article 1 (3) of Law 62/2003 of 30 December 2006. tax, administrative and social order measures, which incorporates into the rules of the Income Tax of the Physical Persons a provision which shall be considered as a payment on account of the withholding tax, in accordance with the provisions of the Article 11 of the Directive.

The royal decree consists of a single article, consisting of six paragraphs, and a final disposition.

Paragraph one modifies Article 1 of Royal Decree 2281/1998 of 23 October, in order to specify the reporting obligations contained in the aforementioned royal decree.

Paragraph two incorporates into that royal decree a Chapter V detailing the reporting obligations to be assumed by certain dominant credit institutions or listed entities other than credit institutions. emissions that may be made by entities that are wholly owned or controlled by those of preferred holdings and other debt instruments. This new chapter consists of two articles, 11 and 12.

Article 11 provides that, since preference shares and other debt instruments are considered to be financial assets, it is to be understood that they are affected by the reporting obligation under Chapter III of Royal Decree 2281/1998 of 23 October 1998, subject to amendment. Article 12 sets out a specific reporting obligation on this type of emissions.

Paragraph three adds a Chapter VI to Royal Decree 2281/1998 of 23 October 1998. This new chapter consists of six articles.

Thus, in Article 13, the scope of the obligations to supply certain information to the tax administration is defined.

Article 14 delimits the income that must be the object of information.

Article 15 provides for the obligation to supply information according to the different types of income. Among them, a special case relating to entities in the allocation of income is regulated. Such entities shall, at the time when they receive income, provide information to the tax authorities in respect of natural persons resident in other Member States of the European Union to whom such income is attributed.

Article 16 sets out the information to be provided to the tax administration so that it can, in turn, meet the deadline laid down in the six-month directive after the end of the calendar year, to supply information to the other Member States.

Article 17 determines the procedure to be followed by the income payers to identify both the recipient and their residence in order to make the provision of information in an appropriate manner, in order to ensure that each State Member of the Board of the Member States of the European Parliament and of the Council of the European Parliament and of the Council

the European Parliament.

Finally, Article 18, last article of this Chapter VI, contains an enabling to the Minister of Economy and Finance for the determination of the time, place and form in which the provision of information should be made effective.

Paragraph four introduces three additional provisions in Royal Decree 2281/1998 of 23 October 1998. The first of these incorporates an exceptional mechanism by which resident taxpayers can avoid withholding tax when they obtain income from Member States applying the withholding tax mechanism provided for in Article 11 of the Treaty. directive.

The second additional provision reduces the percentage of the composition of the asset in instruments or securities representing the transfer to third parties of own capital in certain entities.

The third additional provision is intended to clarify that the object of this royal decree is constituted, as regards the exchange of information of income obtained by natural persons resident in the European Union, the identification mechanisms to be met by the entities required to supply information, and this does not preclude the requirement of the means of proof provided for in the regulations in force for the application of the exemption for the income received by residents of the European Union.

Paragraph five incorporates a first transitional rule to Royal Decree 2281/1998 of 23 October, specifying the level of demand for the information that will apply to the values provided for in the transitional provision. second of Law 19/2003, of July 4.

Paragraph six adds to a second transitional provision specifying that income from certain securities will be the subject of information or not according to whether the issuer is private or public, considering also to those effects the date of issue of the securities, in accordance with Article 15 of the Directive.

Finally, the final single provision specifies the entry into force of the royal decree, establishing a different treatment according to the nature of the rules.

Thus, the rule is expected to enter into force the day after its publication in the "Official State Gazette", although the rules that are incorporated into the legal order as a result of the adoption of the Directive 2003 /48/EC shall enter into force on 1 July 2005.

In its virtue, on the proposal of the Minister of Economy and Finance, in agreement with the Council of State and after deliberation of the Council of Ministers at its meeting of July 30, 2004,

D I S P O N G O:

Single item. Amendment of Royal Decree 2281/1998 of 23 October 1998 implementing the provisions applicable to certain obligations for the provision of information to the tax authorities and amending the Regulation of plans and funds pensions, approved by Royal Decree 1307/1988 of 30 September 1988 and Royal Decree 2027/1995 of 22 December 1995 governing the annual declaration of transactions with third parties.

Royal Decree 2281/1998 of 23 October 1998 implementing the provisions applicable to certain obligations for the provision of information to the tax authorities and amending the regulation of plans and funds The pension scheme, approved by Royal Decree 1307/1988 of 30 September 1988 and Royal Decree 2027/1995 of 22 December 1995, which regulates the annual declaration of transactions with third parties, is amended as follows.

One. Article 1 (1) is worded as follows:

" 1. This royal decree develops certain obligations for the provision of information to the tax authorities which are the responsibility of the persons or entities mentioned therein and consist of the presentation of annual declarations with information about persons authorised in bank accounts, of certain transactions carried out with financial assets, of certain accounts in credit institutions, of certain transactions with preference shares and other debt instruments and of certain income obtained by natural persons resident in other States Members of the European Union. '

Two. A Chapter V is added, with the following wording:

" CHAPTER V

Reporting Obligations for certain operations with preference shares and other debt instruments

Article 11. Reporting obligation.

1. Those required to supply information to the tax authorities referred to in Chapter III of this royal decree shall report in relation to the transactions relating to the preference shares and other debt instruments whose The scheme is laid down in the second provision of Law 13/1985 of 25 May 1985 on investment ratios, own resources and information obligations of financial intermediaries. The information to be supplied shall be that contained in Article 6 of this royal decree, relating to the operations with such preference shares and other debt instruments made with the intermediation of such units.

2. The presentation of this information will take place in the place, form and deadlines set out in Chapter III of this royal decree.

3. For the purposes of compliance with the reporting obligation referred to in this Article, the provisions of Article 8 of this royal decree shall apply.

Article 12. Obligation of information of the dominant entity and of the voting rights holder.

1. The dominant credit institution and the listed entity holding the voting rights referred to in paragraphs 3 and 6 of the second provision of Law 13/1985, of 25 May, shall provide the tax administration with a a statement specifying the following information in respect of the securities referred to in the previous Article:

(a) Identity and country of residence of the recipient of the returns generated by the preference shares or other debt instruments.

When the income is received on behalf of a third party, your identity and country of residence will also be provided.

b) Amount of income received in each period.

c) Identification of the values.

2. The declaration referred to in paragraph 1 shall be submitted in the month of January of each year in respect of information relating to the preceding immediate calendar year in the form and place to be determined by the Minister for Economic Affairs and Finance, who may (a) establish the circumstances in which their presentation is mandatory in support directly readable by computer or by telematic means.

3. For the purposes of drawing up the declaration referred to in paragraph 1, institutions required for the provision of information shall, on the occasion of each payment of the income, obtain and keep at the disposal of the tax administration during the the period of limitation of the tax obligations the following supporting documentation of the identity and residence of each holder of the securities:

(a) Where the non-resident holder acts on his own account and is a central bank, another institution governed by public law or an international body, a bank or credit institution or a financial institution, including institutions of collective investment, pension funds or insurance institutions, resident in any OECD country or in a country with which Spain has an agreement to avoid double taxation, and subject to a specific supervisory or administrative registration, the entity in question must certify its social reason and tax residence in the The Court held that the Court held that the Court of First Directive of the European Parliament and of the Council of 16 September 1991 laid down the procedure for the payment of interest in the interest of State debt in the case of non-resident persons. who invest in Spain without permanent establishment mediation.

(b) In the case of transactions mediated by one of the entities referred to in the preceding paragraph, the entity in question shall, in accordance with its own records, certify the name and residence the tax on each holder of the securities, in the form set out in Annex II to the Order of 16 September 1991.

(c) In the case of transactions channelled through a securities clearing and deposit entity recognised for these purposes by the Spanish legislation or by that of another OECD member country, the institution concerned shall, in accordance with the record in their own records, certify the name and tax residence of each holder of the securities, in the form set out in Annex II to the Order of 16 September 1991.

(d) In other cases, the residence shall be credited by the presentation of the certificate of residence issued by the tax authorities of the holder's State of residence. These certificates shall be valid for one year from the date of their issue.

4. For emissions from the entry into force of this royal decree for the purpose of making the exemption provided for in paragraph 2 (d) of the second provision of the second provision of Law 13/1985, of 25 May, be followed, the the following procedure: on the expiry date of each coupon, the issuing institution shall transfer to the entities referred to in paragraphs (a), (b) and (c) of the preceding paragraph the amount of liquid resulting from the application of the general rate of withholding all interests. Subsequently, if, before the expiry of the period of entry of the withholding tax, the entity required to supply the information receives the above certificates, the issuing entity shall pay the amounts withheld. "

Three. A Chapter VI is added, with the following wording:

" CHAPTER VI

Obligations for information regarding certain income obtained by natural persons resident in other Member States of the European Union

Article 13. Scope of application.

Legal persons and other entities, including entities on the basis of income allocation, and natural persons who, in the course of their economic activity, pay or measure the payment of the income referred to in the Article 14 for natural persons resident in another Member State of the European Union shall comply with the reporting obligations arising from this Chapter.

Article 14. Income subject to provision of information.

1. The following income shall be subject to the provision of regulated information in this chapter:

(a) The interests satisfied, as well as any other form of remuneration agreed as remuneration for the transfer to third parties of own capital, including the income derived from the transfer, redemption, redemption, exchange or conversion of any kind of assets representative of the collection and use of foreign capital, and the other income referred to in Article 23.2 of the recast of the Law on the Income Tax of the Physical Persons, approved by the Royal Legislative Decree 3/2004 of 5 March, with the exception of surcharges for arrears.

(b) Results distributed by the following entities on the part of the income referred to in paragraph (a) above:

1. º collective investment institutions governed by Council Directive 85 /611/EEC of 20 December 1985.

2. º Entities that accept the option provided for in the second paragraph of Article 15 (2) of this royal decree.

3. º collective investment institutions established outside the territory of application of the Treaty on European Community.

(c) The income obtained in the transmission or redemption of shares or units in entities referred to in paragraph (b) above, when they have invested directly or indirectly through other entities of the same type, more than 40% of its assets in securities or claims that generate income from those set out in subparagraph (a) above.

For these purposes, where it is not possible to determine the amount of income obtained in the transmission or redemption, the value of the transmission or redemption of the shares or units shall be taken as such.

This percentage shall be fixed in accordance with the investment policy deriving from the rules or criteria on investments laid down in the fund rules or in the instrument of incorporation of the institution concerned and, by default, depending on the actual composition of its assets, considering the average composition of its assets in the previous financial year prior to the distribution of results or to the transmission or reimbursement.

2. With regard to the provisions of paragraph 1 (a), in the event that financial institutions are unable to determine the performance in the transmission, amortisation or redemption operations, the tax administration shall be notified of the corresponding transmission, amortization or refund value.

Also, in respect of the provisions of paragraphs (b) and (c) of paragraph 1, where the payer of the income does not have information concerning the share of the results distributed or the percentage of assets invested which directly or indirectly corresponds to the values or claims that generate income from those referred to in paragraph (a) of that paragraph, the entire yield shall be deemed to be derived from this type of income or assets.

However, those required for the provision of information may, in relation to the income provided for in paragraphs (b) and (c) of paragraph 1, provide information on the total amount distributed and the total amount obtained in the transmission or redemption of shares or units of collective investment institutions, respectively.

Article 15. Required to supply information.

1. The persons or entities referred to in Article 13 shall be required to supply information, in particular the following:

(a) In the interest payment, or any other agreed remuneration, of accounts in financial institutions, the financial institution that satisfies them.

b) In the payment of coupons of financial assets, as well as in the redemption or redemption, exchange or conversion of those, the issuer of the securities.

However, in the event that a financial institution is entrusted with the materialisation of the above transactions, the obligation shall be the responsibility of that financial institution.

(c) In the performance of the transmission of financial assets, the financial institution acting on behalf of the transferor.

d) Dealing with securities of Public Debt, the managing entity of the Public Debt Market in Annotations that intervenes in the transaction.

e) In the distribution of results of collective investment institutions, the management company or the investment company. In the case of collective investment institutions domiciled abroad, the trading entity or the intermediary authorised for marketing.

(f) In the transmission or redemption of shares or units of collective investment institutions, the management company or the investment company or, where appropriate, the financial intermediary that mediates the transfer. In the case of collective investment institutions domiciled abroad, the trading entity or the intermediary authorised for marketing.

2. Where the income referred to in Article 14 of this royal decree is collected by the entities to which the income allocation scheme laid down in Article 10 and Section 2.a of Title VII of the text is applied to them. recast of the Law on the Income Tax of the Physical Persons, approved by the Royal Legislative Decree 3/2004 of 5 March, provided that the amount of the income is attributable to a natural person resident in another Member State, these entities shall be required to supply information.

These entities will be eligible for the provision of information when they effectively pay the income to their resident members in another EU Member State. In case of recourse to such an option, they shall communicate that circumstance to the tax administration, which shall issue, at the request of the entity, a certification of that option.

3. By way of derogation from the above paragraphs, the persons or entities mentioned above shall not be required to provide information where the income is perceived by a natural person who can prove:

(a) Who pays or averages in the payment of income, within the meaning of Article 13.

(b) acting on behalf of a legal person, an entity subject to taxation in accordance with the general rules on the taxation of undertakings or a collective investment institution governed by Directive 85 /611/EEC.

(c) acting on behalf of an entity without legal personality, not subject to taxation in accordance with the general rules of taxation of undertakings or which does not have the consideration of an institution for collective investment regulated by Directive 85 /611/EEC, whether or not it is an entity for the allocation of income in accordance with Spanish legislation.

In this case, the natural person must communicate the name and address of that entity to the person or entity from whom the income is obtained, which, in turn, will transmit such information to the tax administration.

d) acting on behalf of another natural person. In this case, the person or entity from whom the identity of that natural person obtains the identity in accordance with Article 17 (a) shall be communicated.

Article 16. Information to be supplied.

1. The required subjects referred to in the previous Article shall provide the tax administration with the following information:

(a) The identity and residence of the physical person receiving the income, in accordance with the procedure laid down in Article 17.

b) The account number of the income recipient.

c) The identification of the credit that gives rise to the income.

d) The amount of the rent.

2. Persons or entities who pay or mediate in the payment of the income referred to in Article 14 to entities without legal personality established in another Member State of the European Union, or not subject to taxation in accordance with the rules general taxation of undertakings in another Member State or which do not have the consideration of collective investment institutions governed by Directive 85 /611/EEC, whether or not they are entities in the allocation of income, in accordance with the law They shall communicate the name and address of the institution, as well as the amount of the income.

Article 17. Identification and residence of the recipients of natural persons resident in other EU Member States.

Persons or entities who, in the course of their economic activity, pay the income provided for in Article 14, shall identify the person who is a physical person, as well as his place of residence, in the form of next:

(a) Identity of the perceptive natural person residing in another Member State of the European Union.

1. Contracts formalised before 1 January 2004: the recipient shall be identified by his name and address, using the information at his disposal, taking into account the rules in force in the Spain and, in particular, the provisions of Law 19/1993 of 28 December 1993 on certain measures for the prevention of money laundering.

2. No formalised contracts or transactions carried out without a contract, from 1 January 2004: the recipient shall be identified by his name and address and, if available, by the tax identification number. This information shall be obtained from the passport or the official identity document. Where the address does not appear in the documents, the address shall be obtained from any other supporting document presented by the recipient.

Where the tax identification number is not included in the passport, in the official identity document or in any other evidence presented by the recipient, the identity shall be completed by reference to the date and place of birth appearing on the passport or official identity document.

(b) Residence of the perceptive natural person residing in another Member State of the European Union.

1. Contracts formalised before 1 January 2004: the residence of the recipient shall be credited in accordance with the data available, taking into account the rules in force in Spanish territory and, The provisions of Law 19/1993 of 28 December.

2. No formalised contracts or transactions carried out without a contract, as from 1 January 2004: the residence of the recipient shall be determined in the light of the address entered in the passport or in the document identity officer or, if necessary, on the basis of any other evidence submitted, in accordance with the following procedure:

Where natural persons present a passport or an official identity document issued by a Member State and declare to be resident in a third country, the residence shall be determined on the basis of a certificate of residence (a) the term of office of a person who is a member of the competent authority of the third country in which the natural person declares a resident. If no such certificate is presented, the residence shall be deemed to be situated in the Member State which issued the passport or any other official identity document presented.

Article 18. Deadline, place and form of supply of information.

The declaration containing the information referred to in this Chapter shall be submitted in the month of March of each year in respect of information relating to the preceding calendar year in the form and place to be determined by the the Minister for Economic Affairs and Finance, for further referral to the competent authority of the Member State of residence of the income recipient.

The Minister for Economic Affairs and Finance may establish the circumstances in which his presentation in support directly readable by computer or by telematic means is mandatory. "

Four. Three additional provisions are introduced, with the following wording:

" Additional disposition first. Issue of certificate.

For the purposes of the application of the exemption from the withholding tax provided for in Article 13.1.b) of Council Directive 2003 /48/EC of 3 June 2003 on the taxation of savings income in the form of a payment of interest, the tax administration, upon request of the person concerned, shall issue to the taxpayer the income tax of the physical persons, who receive income from a Member State which applies the withholding tax established in Article 11 of that Directive, a certificate stating the following: data:

a) The recipient's name, address, and tax identification number.

b) Name and address of the person or entity that pays the income.

(c) The account number of the income recipient or, failing that, the identification of the credit.

The certificate, which will be valid for a period of three years, will be issued within the maximum period of 10 working days from your application.

Additional provision second. Composition of the asset in certain institutions.

The percentage referred to in Article 14.1.c) shall be 25% from 1 January 2011.

Additional provision third. Implementation of the procedure for the identification and residence of residents in the European Union.

The procedures for accreditation of the identity and residence provided for in Chapter VI shall apply, without prejudice to the provisions governing the forms of accreditation provided for in the application of the the exemption from interest and other income from the transfer to third parties of own capital for residents of the European Union. '

Five. A first transitional provision is introduced, with the following wording:

" First transient disposition. Procedure to make the reporting obligation effective with respect to the values referred to in the second transitional provision of Law 19/2003 of 4 July.

In the case of preferential shares and debt securities falling within the scope of the second transitional provision of Law 19/2003 of 4 July on the legal arrangements for the movement of capital and capital economic transactions with the outside and on certain measures for the prevention of money laundering, the provisions of Royal Decree 1285/1991 of 2 August, in respect of the financial institutions which are the intermediary of the issue, shall apply. '

Six. A second transitional provision is introduced, with the following wording:

" Second transient disposition. Treatment of certain fixed income instruments for the purposes of reporting obligations for natural persons resident in other Member States of the European Union.

1. Income arising from national and international obligations and other negotiable debt instruments which have been issued originally before 1 March 2001, or whose issuance of origin prospectuses have been approved before that date the date by the competent authorities in accordance with Council Directive 80 /390/EEC of 27 March 1980 on the coordination of the drawing-up, control and dissemination of the prospectus to be published for the admission of securities to the listing official on a stock exchange, or by the authorities responsible for third countries, does not shall be considered to be subject to the provision of information provided for in Chapter V of this royal decree, provided that no emissions of such marketable debt instruments have been reproduced since 1 March 2002.

If an equivalent government or entity, acting as a public body or whose function is recognised in an international treaty, in accordance with the provisions of the Annex to Directive 2003 /48/EC, makes another issue of the debt instruments negotiable before mentioned as from 1 March 2002, the income derived from the whole issue, either the original or the successive issue, shall be deemed to be subject to the provision of information provided for in the Chapter; V of this royal decree.

If an issuer not referred to in the preceding subparagraph shall make any other issuance of such instruments as of 1 March 2002, only such subsequent issuance shall be considered to be the income derived from those securities subject to the provision of information provided for in Chapter V of this royal decree.

2. The provisions of the preceding paragraph shall cease to apply on 31 December 2010. '

Single end disposition. Entry into force.

1. The provisions of paragraphs 1, 2 and 5 of the Single Article shall enter into force on the day following that of their publication in the Official Gazette of the State.

2. The provisions of paragraphs 3, 4 and 6 of the Single Article shall enter into force on 1 July 2005 and shall apply to all income subject to the provision of information which is paid or paid from that date.

By Order of the Minister for Economic Affairs and Finance, the date of entry into force may be amended to accommodate the eventual new date to be fixed in accordance with the provisions of Article 17 (3) of the Directive. 2003 /48/EC of the Council of 3 June 2003.

Given in Palma de Mallorca, 30 July 2004.

JOHN CARLOS R.

The Second Vice President of the Government and Minister of Economy and Finance,

PEDRO SOLBES MIRA