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Order Hap/1608/2014, 4 September, Which Approves The Model 187, Of Disclosure Statement Of Shares Representative Of Capital Or The Heritage Of Institutions For Collective Investment And Annual Summary Of Re...

Original Language Title: Orden HAP/1608/2014, de 4 de septiembre, por la que se aprueba el modelo 187, de declaración informativa de acciones o participaciones representativas del capital o del patrimonio de las instituciones de inversión colectiva y del resumen anual de re...

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The Order of 15 December 1999 approved model 187 for the reporting of shares or shares representing the capital or assets of the collective investment institutions and the annual summary of the deductions and income on account of the Income Tax of the Physical Persons, the Tax on Societies and the Income Tax of Non-Residents, in relation to the income or property gains obtained as a result of the transmissions or repayments of those shares or shares. However, the successive reforms which have taken place over the years in both the tax and the development of the rules applicable to the institutions of collective investment have determined that the Order of 15 December 1999 has been the subject of numerous amendments, the last of which was by Order HAP/2369/2013 of 13 December 2013.

On this line, Law 16/2013 of 29 October, establishing certain environmental tax measures and adopting other tax and financial measures, has introduced a major reform in the field of environmental taxation. Law 35/2003, of November 4, of Collective Investment Institutions, which has brought with it modifications also in the laws regulating the Corporate Tax, the Income Tax of Non-Residents and the Income Tax of the Natural Persons. The aim of the legislative amendment is to allow the placing on the internal market of shares in investment funds constituted in Spain through a system of global accounts, in such a way that placed on the market by entities authorized for the provision of investment services or through other management companies, domiciled or established in Spanish territory, may appear on the register of members of the management company of the the fund to be placed on the market in the name of the trader and on behalf of the unit-holders. As a result, in the case mentioned above, the management company will no longer have all the information of the members of the fund, but the information relating to some of them or, in some cases, a part of it, will appear in the records of the (a) the financial and tax liability of the latter is necessary for the latter to assume obligations in the financial and fiscal fields. The incorporation into our legal order of the aforementioned obligations has also determined the modification, by Royal Decree 960/2013, of 5 December, of the Regulations of the Tax on Societies, of the Tax on the Income of Non-residents and the Income Tax of the Physical Persons.

Additionally, the previous regulatory reforms make it necessary to modify the way the Tax Administration receives the information contained in the 187 model, in order to identify appropriately those cases where the existence of different records of unit-holders in relation to the same fund and holder implies either that the result originated in the transmissions and reimbursements and calculated by the managing company or entity the market may not coincide with the amount to be included in the taxable person's tax base; or in those cases where, pursuant to Article 94 of Law 35/2006, of 28 November, of the Tax on the Income of the Physical Persons and of partial modification of the laws of the Taxes on Societies, on the Income of not Residents, and on the Patrimony, does not proceed with the calculation of the result of the operation, the values and dates of acquisition of the shares or units determined by the application of that precept may not coincide with the information received by the management or investment company of destination.

For all of the above, for the purpose of adapting the model 187 to the mentioned normative modifications and in order to facilitate the fulfillment of the informative obligations inherent to its presentation and to guarantee the safety (a) a new model 187 should be adopted for the reporting of shares or shares representing the capital or assets of the collective investment institutions and the annual summary of withholding and revenue Account of the Income Tax of the Physical Persons, of the Company Tax and the Income Tax of non-residents, in relation to the income or property gains obtained as a result of the transmissions or repayments of those shares or units.

Finally, with respect to the regulatory regulations of the reporting obligations to which compliance is given by the presentation of model 187, Article 108 (5) of the Income Tax Regulation Natural Persons, approved by Royal Decree 439/2007 of 30 March, Article 66 (5) of the Companies Tax Regulation, adopted by Royal Decree 1777/2004 of 30 July 2004 and Article 15 (2) of the Regulation of the European Parliament and of the Council Non-Resident Income Tax, approved by Royal Decree 1776/2004, of July 30, enable the Minister of Economy and Finance to approve the corresponding model of annual retentions. The same ratings, but in relation to the development of the information declaration model by Ministerial Order, are set out in the fourth paragraph of Article 100 of the aforementioned Income Tax Law. Natural Persons, in Article 141 (4) of the recast of the Companies Tax Act, approved by Royal Decree-Law 4/2004 of 5 March and in Article 53 (4) of the recast of the Tax Law on the Income of Non-Residents, approved by Royal Legislative Decree 5/2004, of 5 March, which join the contained in Articles 30 and 117 of the General Rules of Procedure and the procedures for the management and inspection of taxes and the development of the common rules of procedure for the application of taxes, approved by Royal Decree 1065/2007, dated July 27.

The ratings to the Minister of Economy and Finance included in the previous provisions should be understood as currently conferred on the Minister of Finance and Public Administrations, in accordance with the provisions of Article 5. and in the final provision of Royal Decree 1823/2011 of 21 December 2011, which restructured the ministerial departments.

In your virtue I have:

Article 1. Approval of model 187 and physical and logical designs.

1. Model 187 is approved, " Information statement of shares or units representing the capital or assets of the institutions of collective investment and of the annual summary of withholding and income on account of the Income Tax of the Physical Persons, of the Tax on Societies and of the Income Tax of Non-Residents, in relation to the income or property gains obtained as a result of the transmissions or repayments of those shares or units ", which is set out in Annex I to this Order.

This information reporting model consists of a summary sheet, comprising two copies, one for the Administration and one for the person concerned.

The identifying number to be shown in model 187 will be a sequential number whose first three digits will correspond to code 187.

The identifying number to be included in model 187 in the case of a replacement or supplementary declaration incorporating previously undeclared records shall be a sequential number whose first three digits correspond to code 187.

The submission of supplementary declarations modifying the content of the data contained in another statement submitted above and referring to the same financial year shall be made from the consultation service and modification of information statements, within the procedures associated with model 187, which is available at the Electronic Headquarters of the State Administration of Tax Administration, in the electronic address https://www.agenciatributaria.gob.es https://www.agenciatributaria.gob.es. In this case the supplementary declaration shall be identified by the electronic code of its presentation, with no identification number required.

2. The physical designs to which the directly readable media are to be adjusted and the logical designs to which the files containing the information to be supplied must be adjusted, both in the case of presentation by computer-readable support, such as by electronic means via the Internet. Both physical and logical designs are listed in Annex II to this Order.

Article 2. Required to present model 187.

They will be obliged to present the model 187 those persons who, being obliged to retain or to enter into account regarding the Income Tax of the Physical Persons, the Tax on Societies or the Tax on the Income of non-residents, in accordance with the legal and regulatory regulatory regulations of these taxes, they satisfy income subject to withholding or income as a result of operations of transmission or redemption of shares or shares representing the capital or equity of investment institutions collective.

Also, the persons or entities referred to in Article 42 of the General Rules of Procedure and the Tax and Tax Administration and Inspection procedures are also required to present the model 187. development of the common rules for the procedures for the application of taxes, approved by Royal Decree 1065/2007 of 27 July 2007, in respect of transactions involving shares or units of investment institutions collective.

Article 3. Object of the information.

You must be a declaration object in model 187, in accordance with the designs contained in Annex II to this Order, the property gains or losses and the results derived from the transmission or reimbursement of shares or shares representing the capital or assets of institutions for collective investment, deductions and revenue in respect of which, where appropriate, have been carried out on them, as well as acquisition and disposal operations of the above values.

Article 4. Deadline for submission.

The time limit for the submission of model 187 shall be between 1 and 31 January of each year for operations corresponding to the previous immediate calendar year.

Article 5. Retentions and income on account of profit or loss resulting from transfers or repayments of shares or shares representing the capital or assets of the collective investment institutions by non-resident Income Tax taxpayers without permanent establishment mediation.

1. The tax authorities shall keep at the disposal of the tax administration, during the period of limitation referred to in Article 70 of Law 58/2003, of 17 December, General Tax, the documentation justifying the Withholding taxes and income on account.

In those cases where the withholding tax or the application of the exemptions from the Spanish domestic legislation is not practised on the basis of the taxpayer's residence, it shall be justified by means of a certificate of tax residence issued by the tax authorities of the country of residence.

Where the withholding of exemptions from a Convention is not practised in order to avoid double taxation with a provision for exchange of information subscribed by Spain or by applying the limits of taxation it shall be justified by a certificate of residence issued by the relevant tax authority, in which it must expressly state that the taxpayer is resident within the meaning of the Convention.

The residence certificates referred to in the preceding two paragraphs shall be valid for one year from the date of their issue.

Where the withholding tax is not practised, it shall be credited by the tax return corresponding to that income submitted by the taxpayer or his/her representative.

2. In the case of contracts for the cross-border marketing of shares or units of Spanish collective investment institutions by the use of global accounts in the name of the trading entities resident in the The following procedure for the accreditation of the residence for the purposes of the practice of withholding or income is established for the purposes of the practice of withholding tax or income to account for the purposes of the single additional provision of the Non-Resident Income Tax Regulation. on the property gains obtained by taxpayers of the Income Tax Residents without permanent establishment, arising from repayments or transfers of shares or shares of Spanish collective investment institutions:

(a) Where the trading entity is resident in a country with which Spain has signed a Convention to avoid double taxation with an exchange of information clause, it shall issue and deliver a certificate to the the management company or the investment company, for each collective investment institution or, where appropriate, for each compartment or class of shares or series of shares in the same, with the frequency at which the institution of collective investment Store the refund or transmission, and refer exclusively to those operations that generate property gains, containing:

1. Place and date the certificate is issued.

2. The name of the trading entity and full address in your country of residence. Also, the tax identification number attributed by the Spanish tax administration to the trading entity resident in a country with which Spain has signed a Convention to avoid double taxation with a clause should be included. for the exchange of information, except where, in accordance with the provisions of paragraph 3 (c) of the single additional provision of the Non-Resident Income Tax Regulation, approved by Royal Decree 1776/2004 of 30 June 2004, In July, it is not required to present the individual relations to which it refers precept.

3. º Identification and charge of the person who subscribes to the certificate, who must have sufficient power to do so.

4. º Denomination of the collective investment institution, tax identification number attributed by the Spanish tax administration and tax domicile.

5. º Where applicable, the name of the compartment and the class of the shares or series of shares.

6. ISIN code of the units or shares of the collective investment institution or, as the case may be, the compartment or class or series thereof.

7. º. Where applicable, name of the managing body, tax identification number attributed by the Spanish tax administration and tax domicile.

8. º Date of transmission or refund.

9. ° For taxpayers resident in the same country as the marketing person to whom the withholding tax is applied for the application of an exemption pursuant to Article 14 the recast of the Non-Resident Income Tax Act, or as a result of the convention to avoid double taxation applicable, must be reported separately the number of transmitts that have obtained the property gains, the number of shares or shares to be reimbursed or transferred, the total amount of such refunds or transmissions and the total purchase amount corresponding to the shares or shares/units transmitted or repaid.

10. In respect of other contributors, the number of transmitters who have obtained property gains, the number of shares or shares to be reimbursed or transferred shall be reported separately, the amount total of such repayments or transmissions, the total amount of acquisition corresponding to the shares/units transmitted or repaid and the total amount of the property gains.

The management companies or investment companies resident in Spain may justify the exclusion of withholding or entry into account, by application of an exemption under the internal or agreed rules, to the (a) taxpayers with the right to apply such exemption which are resident in the same country as the market, as well as the withholding or entry into account that, pursuant to Article 31 (2) of the recast of the Law on the Tax on the Income of non-residents, resulting from the application of the rate of charge provided for in point (f) of paragraph 1 (f) Article 25 of that recast text, on the property gains obtained by the other taxpayers, by means of the aforementioned certificate. In addition, the foreign trading entity shall forward to the management companies or investment companies a certificate of residence for tax purposes of the same issued by the tax authorities of its country which shall be valid for three years. from their date of issue.

(b) Where the foreign trading entity is resident in a country or territory other than those listed in (a) above, it shall issue and deliver a certificate to the management company or the investment company, each collective investment institution or, as the case may be, for each compartment or class of shares or series of shares of the same, with the frequency at which the collective investment institution meets the reimbursement or transmission, and referred to exclusively to those operations that generate property gains, containing:

1. Place and date the certificate is issued.

2. º Denomination of the marketing entity, tax identification number attributed by the Spanish tax administration and full address in your country of residence.

3. º Identification and charge of the person who subscribes to the certificate, who must have sufficient power to do so.

4. º Denomination of the collective investment institution, tax identification number attributed by the Spanish tax administration and tax domicile.

5. º Where applicable, the name of the compartment and the class of the shares or series of shares.

6. ISIN code of the units or shares of the collective investment institution or, as the case may be, the compartment or class or series thereof.

7. º. Where applicable, name of the managing body, tax identification number attributed by the Spanish tax administration and tax domicile.

8. º Date of transmission or refund.

9. º Number of transmitters.

10. º Number of shares or shares to be reimbursed or transferred to those taxpayers.

11. º Total amount of refunds or transmissions.

12. º Total acquisition amount corresponding to those refunds or transmissions.

13. th Total amount of property gains.

Managing companies or investment companies resident in Spain may justify the withholding or entry into account resulting from the application of the rate of charge provided for in point (f) of paragraph 1 (f). Article 25 of the recast text of the Non-Resident Income Tax Act, on the property gains obtained by the taxpayer, by means of the aforementioned certificate, which shall not have any effect on the exclusion of revenue from the application of an exemption under the internal or agreed rules. In addition, the foreign trading entity shall forward to the management companies or investment companies a certificate of residence for tax purposes of the same issued by the tax authorities of its country which shall be valid for three years. from their date of issue.

(c) The foreign trading entity may issue and deliver to the management company or the investment company the certificates referred to in points (a) and (b) above relating to the same calendar month within 10 days. The first of the following calendar month. In such cases, the foreign marketing entity may issue a single certificate, stating its monthly character, which shall collect the data referred to in those letters, corresponding to the calendar month, ordered according to the date of transmission. or refund.

The form of remission referred to in the preceding paragraph shall be without prejudice to the obligation of the trading entity to communicate to the management company or to the investment company, with the frequency at which the Collective investment institution shall be responsible for the reimbursement or transmission of shares or units, the information necessary for the correct practice of withholding or taking into account.

(d) The managing body resident in Spain or, as the case may be, the investment company shall be required to keep the documentation provided for in this paragraph at the disposal of the tax administration, during the limitation period to referred to in Article 70 of Law 58/2003 of 17 December, General Tax.

(e) the managing body or the investment company, for the purposes of the completion of the information declaration of shares or units representing the capital or assets of the collective investment institutions and the annual summary of retentions and revenue to account, model 187, group the information referred to the transmissions or reimbursements that are included in each certificate issued by the marketer, if applicable, in two records of operation, one on taxpayers who have not supported withholding tax by application of exemption under of internal or agreed rules, and another relative to other taxpayers. The managing body or the investment company shall either record in both cases as a partner or participate in the foreign trading entity. The other information in the model relating to the partner or participant shall be understood as referring to the foreign trader.

The amount of the gain shall be entered, if any, in the field referred to in those of a term of generation equal to or less than one year.

(f) The special accreditation procedure referred to in paragraph 2 shall be without prejudice to the power of the tax authorities to require, where appropriate, any taxpayer, the justification of their right to application of the Convention, by providing the corresponding certificate of residence for tax purposes within the meaning of the Convention issued by the relevant tax authority, or the source of the application for exemption from internal rules, by the reason for the taxpayer's residence, by providing a certificate of tax residence issued by the tax authorities concerned.

g) Notwithstanding the foregoing in the preceding letters of paragraph 2, irrespective of the country or territory of residence of the trading entity, and even if it does not coincide with the residence of the recipient, the hold or enter into account may apply the provisions of paragraph 1 of this Article 5 in order to justify the exclusion of withholding from the application of an exemption under the internal or agreed rules to which the taxpayer. In this case, the obligation to retain or to enter into account must have the corresponding tax residence certificates of the taxpayers and keep them in the terms of paragraph one of this article 5.

In the certificates referred to in points (a) and (b) of this paragraph 2, the information relating to these contributors shall be disaggregated, indicating:

1. Person Type: Physical or Entity.

2. First Name and name, or denomination.

3. º Spanish tax identification number, if the taxpayer has it.

4. º Tax identification number assigned to the taxpayer in the territory or country of residence, if you have it.

5. Country or territory of residence, in accordance with the codes of countries and territories listed in Annex II of Order EHA/3496/2011, of 15 December.

6. No. Number of shares or shares to be reimbursed or transferred to the taxpayer.

7. # Refund or transmission amount.

8. º Amount of acquisition for reimbursement or transmission.

9. º Amount of wealth gain.

For the purposes of the completion of the information declaration of shares or shares representing the capital or assets of the collective investment institutions and of the annual summary of withholding and revenue account, model 187, the managing body or the investment company shall not group the information referred to by these contributors but shall appear in individual records in the name of the taxpayer.

Article 6. Subscription or acquisition of shares or shares of Spanish collective investment institutions through trading entities abroad.

In the case of subscriptions or acquisitions of shares or shares of Spanish collective investment institutions channeled through foreign-resident trading entities acting on behalf of their clients under contracts for marketing to which Article 21 of the Regulation of Law 35/2003, of 4 November, of Collective Investment Institutions refers, for the purposes of the completion of the information declaration of shares or shares representing the capital or assets of institutions of collective investment and the annual summary of withholding or income to account, model 187, the managing body or the investment company shall enter as a partner or participate in the foreign trading entity. The other information in the model relating to the partner or participant shall be understood as referring to the foreign trader.

Article 7. Forms of presentation of model 187.

1. The presentation of model 187 " Information statement of shares or shares representing the capital or assets of the collective investment institutions and of the annual summary of withholding and income on account of the tax on the Income of the Physical Persons, the Corporate Tax and the Income Tax of Non-Residents, in relation to the income or property gains obtained as a result of the transmissions or repayments of those shares or participations " shall be carried out in accordance with the provisions of Articles 12 and 13 of Order HAP/2194/2013, Regulation of the European Community and of the Council of 22 November laying down general conditions for the presentation of certain self-actions and information declarations of a tax nature.

2. The presentation in direct-readable support of the model 187 shall be made in accordance with the provisions of Article 15 of Order HAP/2194/2013 of 22 November 2013 governing the procedures and general conditions for the submission of certain self-actions and information statements of a tax nature.

3. The electronic submission by the Internet of model 187 shall be made in accordance with the conditions and procedure laid down in Articles 16 and 17 of Order HAP/2194/2013 of 22 November 2013 governing the procedures and procedures for general conditions for the submission of certain self-actions and information statements of a tax nature.

Single repeal provision. Regulatory repeal.

The Order of 15 December 1999 approving models 187, in pesetas and in euro, of a reporting of shares or shares representing the capital or assets of the institutions of the European Union, is hereby repealed. collective investment and the annual summary of withholding and income on account of the Income Tax of the Physical Persons, the Corporate Tax and the Income Tax of Non-Residents, in relation to the income or income assets obtained as a result of the transmissions or repayments of those shares or participations, as well as the physical and logical designs for the compulsory presentation of the above models by directly readable support by computer, and the Order of 22 February 1999, for which the models 117 are approved, is amended. pesetas and in euros.

Single end disposition. Entry into force.

This Order shall enter into force on the day following that of its publication in the Official Gazette of the State, and shall apply for the first time for the presentation of the information declaration and annual summary of withholding for the financial year 2014.

Madrid, 4 September 2014.-The Minister of Finance and Public Administration, Cristobal Montoro Romero.

ANNEX I

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ANNEX II

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