Law 41/1998 of 9 December, the income of non-resident tax and tax rules, regulates unitary taxation of non-resident tax on the income. This law, as stated in its preamble, does not imply a radical innovation in the area of taxation of non-residents, but Yes introduces some novelties.
Between them, is very important retention system that establishes the law in its article 30, according to which, as a general rule, certain persons or entities that satisfy or paid on income subject to the tax will come obliged to withhold or login to account an amount equivalent to the own tax, in accordance with the characteristics listed in that article.
To this effect, paragraph 5 of article 30 of the law establishes that the subject required to retain and practice income to account statement and must be income in the Treasury, in the place, form and time limits established, the retained amounts or the payments on account made or negative statement when it had not proceeded the same practice.
In addition, subjects bound to hold will have this consideration for all purposes, since, by virtue of the provisions of the second subparagraph of paragraph 1 of article 8 of the law, joint and several liability will not exist when implementing the obligation of withholding or paying on account.
The Royal Decree 2717 / 1998, dated December 18, by which regulate payments in the tax on physical persons income and the income of non-resident tax and amending the regulation of the tax in respect of withholdings and payments on account, develops in its articles 42 to 49 the regulatory regime of the obligation to retain and access account. In particular, article 48 regulates the declarations to be submitted by retainers or forced to log in to account.
On the other hand, the third subparagraph of paragraph 1 of article 48 of the Royal Decree 2717 / 1998, of 18 December, empowers the Minister of finance to establish the cases in which no proceeding practice retention or income account, in accordance with the provisions of paragraph 4 of article 30 of the law, are excluded also from the obligation to submit negative withholding Declaration. These assumptions are listed in section segundo.tres of this order.
Consequently, to be able to practice this obligation to withhold it is necessary a new model of Declaration and income, set out in the annex to this order, which will be complemented by the annual summary to be approved in a next order.
On the other hand, the available additional first of this order sets a standard with an aim to clarifying. Using the same remains the model 211 to make the filing and payment of the retention of the 5 by 100 to purchasers of real estate to non-residents are required.
Paragraph 2 of the second final provision of the law, establishes that models of this tax and payments on account shall be approved by the Minister of economy and finance, who shall establish the form, place and time limits for submission.
Moreover, paragraph 5 of article 48 of the Royal Decree 2717 / 1998, December 18, provides that the statements referred to in this article will be on models provided by the Minister of economy and finance, as well as to the filing and payment shall be made in the form and place to be determined by the same.
Consequently and in use of the permissions I have conferred, I have: first. Blank approval. The 216 model approves it. «Non-resident income tax.
Income obtained without mediation of permanent establishment. Withholdings and payments on account. Declaracion-documento of income». This model, which is contained as an annex to this order, consists of three copies: sheet for the annual envelope, exemplary for the declarant and exemplary for the data colaboradora-proceso entity.
Second. Required to present the 216 model.
One. This model should be used by subjects bound to retain or make income to count on income derived without mediation of permanent establishment by taxpayers of the tax on the income of non-residents, referred to in article 44 of the Royal Decree 2717 / 1998, of December 18, for admission to the treasure of the retained amounts or the payments on account made.
Two. The 216 model will also be used by the required in cases in which, in accordance with the provisions of paragraph 4 of article 30 of law 41/1998 of 9 December, cited the tax on income of non-resident and tax rules, appropriate practice retention or deposit account. In these cases indicate the number and the amount of satisfied income to non-residents without a permanent establishment in the period to which it relates to the Declaration and, where applicable, in accordance with the provisions of point 2 of article 44 of the Royal Decree 2717 / 1998, of December 18, also indicate the number and the amount of income and capital gains obtained by non-residents without mediation of permanent establishment in the referral period.
3. Shall not be taken into account, for the purposes of the two former number, the following income: 1 income referred to in article 13(1). to) of law 41/1998 of 9 December, the income of non-resident tax and tax rules.
2. income derived from securities issued in Spain by individuals or non-resident entities without mediation of permanent settlement, anyone who is the place of residence of the financial institutions that act as agents of payment or medien in the emission or transmission of values.
3rd yields of accounts by non-residents to meet taxpayers this tax, unless the payment is made to a permanent establishment situated in Spanish territory, by the Bank of Spain or the registered entities referred to in the regulation of financial transactions with the outside.
4th of the debt of the State and the autonomous communities interests in annotations, subject to a special procedure for payment thereof or refund of deductions.
5 exempt income from the obligation to withhold and entering account listed in paragraph 3 of article 43 of the Royal Decree 2717 / 1998, of December 18.
6 the incomes referred to in letter c) article 131 of law 43/1995, of 27 December, the corporate income tax.
Third party. Place of presentation and income.
One. If the Declaration is amount to enter, such income must be the entity of deposit that provides the service box in the delegation of the State Agency for tax administration or administrations that depend on it, in whose territorial demarcation has its fiscal domicile of the obligor to pay, joining the declaracion-documento of income a photocopy of the card or document of the tax identification number if it has no attached the supplied labels to do so by the State tax administration agency.
Where the declaracion-documento of income take attached labels above and has not elapsed more than one month from the expiry of the period of such a statement, income may also be in any collaborating (banks, savings banks or credit unions), of the province corresponding to the fiscal domicile of the declarant.
Two. For negative statements, these shall arise, directly or by sending by registered mail, in the Central management unit of large companies, the regional management of large business units or unit or section of tax management of the delegation or administration of the State Agency for tax administration corresponding to the fiscal domicile of the declarant, as appropriate the declaration accompanying photocopy of the card or document of the tax identification number if it has no attached the corresponding labels.
Room. Deadline for submission eingreso. The presentation of the 216 model, as well as, where appropriate, the entry of its amount in the Treasury, will be performed in the first twenty days of the months of April, July, October and January, in relation to the retained amounts and income to account who carry out corresponding to the first, second, third and fourth quarter of the calendar year respectively.
However, the filing and payment referred to in the preceding paragraph shall be made in the first twenty days of each month, in relation to the retained amounts and the payments on account made corresponding by the immediately previous month, case of retainers or forced whose turnover, calculated in accordance with article 121 of the law 37/1992 of 28 December, value added tax, it would have exceeded during the immediately preceding calendar year of 1,000,000,000 pesetas, as it prevents the number 1. or paragraph three of article 71 of the regulation of the tax on the value added, approved by the Royal Decree 1624 / 1992, 29 December. By exception, the filing and payment corresponding to the month of July will take place during the month of August and the first twenty natural days of September immediately after.
First additional provision.
Purchasers of real estate to non-residents forced to withhold or make entry into account to that referred to in paragraph 2 of article 24 of law 41/1998 of 9 December, the income of non-resident tax and tax rules, to be used for the Declaration and practiced withholding income or income account that model 211 shall make approved for the purpose by order of 23 December 1997, concerning the following, not being applicable, therefore transitional provision, the model 216 is approved in this order.
Second additional provision.
Amending Annex II of the order of 15 June 1995 which is partially developed the General Regulation of fundraising in the wording given to him by Royal Decree 448/1995, of 24 March, in relationship with the entities of deposit that provide the service of collaborative revenue management, including in the code 022 , «Self-assessments special», as follows: model code: 216.
Denomination: Non-resident income tax. Income obtained without mediation of permanent establishment. Withholdings and payments on account.
Periodicity: Monthly, quarterly.
Sole transitional provision.
The order of 23 December 1997, by which dictate standards statement of taxes on the income of the physical persons, on societies and on the heritage, earned by real obligation, as well as of the special tax on real properties of entities non-residents, determines the percentage of expenses of the permanent establishments whose operations do not close a business cycle sets the rule of conversion into national currency of payments in foreign currency, regulates the clamp accrediting certification for personal obligations amending orders of 15 June 1995 and 15 October 1992, and to continue existing as not oppose provisions in law 41/1998 of 9 December , non-resident income tax and tax rules, until the entry into force of the rules handed down under the qualifications contained in this law. For this purpose, the references made to the rules governing real obligation to contribute the tax on the income of physical persons and companies construed as references to the relevant precepts of the income of non-resident tax.
Sole final provision.
This order shall enter into force the day following its publication in the «Official Gazette» and shall apply for statements concerning withholdings and payments on account made as of January 1, 1999.
Madrid, January 26, 1999.
DE RATO Y FIGAREDO Ilmos. Mr Director-general of the State Agency of tax administration and Director-general of taxes.
(See pages 3727-3731 images)