Law 41/1998, of December 9, of the Income Tax of Non-Residents and Tax Rules, regulates in a unitary manner the taxation of non-residents in income taxes. This Law, as indicated in its preamble, does not represent a radical innovation in the area of taxation of non-residents, but it does introduce certain new developments.

Among the same, the system of retentions established by the Law in its Article 30 is of great importance, according to which, in general, certain persons or entities that satisfy or pay income subject to the tax they shall be obliged to retain or enter into account an amount equivalent to the tax itself, in accordance with the particularities set out in that Article.

To this effect, Article 30 (5) of the Law provides that the subject obliged to retain and to practice income must submit a declaration and make the income at the Treasury, in the place, form and time limits that are establish, of the amounts withheld or of the revenue to be realized or negative statement when the practice of the same has not been carried out.

In addition, the subjects required to retain this consideration are to have this consideration for all purposes, since, pursuant to the second subparagraph of Article 8 (1) of the Law, joint and several liability will not exist. where the obligation to retain or enter into account is applicable.

The Royal Decree 2717/1998 of 18 December, which regulates payments on account in the Income Tax of the Physical Persons and in the Income Tax of Non-Residents and the Tax Regulation is amended In its articles 42 to 49, the regulatory regime of the obligation to retain and enter into account develops in its articles 42 to 49. In particular, Article 48 regulates the statements to be made by the retainers or required to be entered into account.

On the other hand, the third paragraph of Article 48 (1) of Royal Decree 2717/1998, of 18 December 1998, empowers the Minister for Economic Affairs and Finance to establish the cases in which he or she does not carry out In accordance with the provisions of Article 30 (4) of the Law, it is also excluded from the obligation to make a negative statement of withholding tax. These assumptions are listed in the second paragraph of this Order.

Consequently, in order to be able to implement this obligation to retain, a new model of declaration and entry is necessary, which is set out in the annex to this Order and which will be complemented by the annual summary to be approved in an upcoming Order.

On the other hand, the additional provision of this Order establishes a rule with a clarifying objective. It maintains the model 211 to make the declaration and entry of the retention of the 5 per 100 to which the acquirers of real estate to non-residents are obliged.

Paragraph 2 of the second final provision of the Law establishes that the models for declaring this tax and those of its payments to be made will be approved by the Minister of Economy and Finance, who will establish the form, place and deadlines for submission.

For its part, Article 48 (5) of Royal Decree 2717/1998 of 18 December 1998 provides that the declarations referred to in that Article shall be made in the models established by the Minister for Economic Affairs and Finance, and the declaration and entry shall be made in the form and place to be determined by the same.

Consequently and in use of the authorizations I have granted, I have:

First. Model approval. Model 216 is approved. " Income tax of non-residents.

Rents obtained without permanent establishment mediation. Withholding and income on account. Declaration-entry document '. This model, which is annexed to this Order, consists of three copies: Copy for the annual envelope, copy for the declarant and copy for the data-processing entity.

Second. Required to present the model 216.

One. This model must be used by the persons who are obliged to retain or make income on account of the income obtained without mediation of permanent establishment by taxpayers of the Income Tax of non-residents, to which the Article 44 of Royal Decree 2717/1998 of 18 December 1998 to make the entry into the Treasury of the amounts withheld or of the revenue to be made.

Two. The model 216 will also be used by those who are obliged to do so in cases where, in accordance with the provisions of Article 30 (4) of Law 41/1998 of 9 December 1998, the Income Tax of Non-Residents and Tax Rules, Apply retention or income to account. In such cases the number and the amount of the income shall be indicated to non-residents without permanent establishment in the period covered by the declaration and, where appropriate, in accordance with the provisions of Article 44 (2) of the Treaty. Royal Decree 2717/1998, of December 18, will also indicate the number and the amount of income and property gains obtained by non-residents without mediation of permanent establishment in the said period.

Three. The following income shall not be taken into account for the purposes of the preceding number two:

1. The income referred to in Article 13.1.a) of Law 41/1998, of December 9, of the Income Tax of Non-Residents and Tax Rules.

2. º Income derived from securities issued in Spain by natural persons or non-resident entities without permanent establishment mediation, whatever the place of residence of the financial institutions acting as payment agents or mediate in the issue or transfer of securities.

3. º The income of the non-resident accounts that are satisfied to taxpayers of this Tax, except that the payment is made to a permanent establishment located in Spanish territory, by the Banco de España or by the registered entities referred to in the rules of economic transactions with the outside.

4. The interests of the Debt of the State and the Autonomous Communities in Annotations, subject to a special procedure of payment of the same or of withholding of retentions.

5. The income excepted from the obligation to retain and to enter into account listed in Article 43 (3) of Royal Decree 2717/1998, of December 18.

6. The income referred to in point (c) of Article 131 of Law 43/1995 of 27 December of the Company Tax.

Third. Place of presentation and entrance.

One. If the declaration is a quantity to be entered, such entry must be made in the deposit entity that provides the cash service in the Delegation of the State Tax Administration Agency or Administrations that are dependent on it, in the territorial demarcation of which has its tax domicile the obligation to pay, accompanying the declaration-document of the photocopy of the card or the document proving the number of tax identification if the same does not carry the labels Identification of the information provided for the purpose by the State Administration Agency Tax.

In the event that the declaration-entry document carries the aforementioned labels and has not elapsed more than one month from the expiration of the period of such declaration, the entry may also be made in any entity (banks, savings banks or credit unions) of the province corresponding to the tax domicile of the declarant.

Two. In the case of negative declarations, they must be submitted, either directly or via registered mail, to the Central Unit for the Management of Large Enterprises, the Regional Large Enterprise Management Units or the Dependence or Tax Management Section of the Delegation or Administration of the State Administration of Tax Administration corresponding to the tax domicile of the declarant, as appropriate, accompanying the photocopy declaration of the card or document proof of the tax identification number if the same is not attached to the corresponding identifying labels.

Fourth. Time limit for filing. The presentation of the model 216, as well as, if necessary, the income of its amount in the Public Treasury, will be carried out in the first twenty calendar days of the months of April, July, October and January, in relation to the quantities retained and the income Account shall be taken of the first, second, third and fourth quarter of the calendar year, respectively.

However, the declaration and entry referred to in the preceding paragraph shall be made in the first twenty calendar days of each month, in relation to the amounts withheld and the revenue to be made corresponding to the the preceding immediate month, in the case of retainers or obligors whose volume of operations, calculated in accordance with Article 121 of Law 37/1992 of 28 December 1992, of the value added tax, would have exceeded during the calendar year This is the immediate past of 1,000,000,000 pesetas, as the number 1 prevents. or Article 71 (3) of the Value Added Tax Regulation, approved by Royal Decree 1624/1992 of 29 December 1992. By way of derogation, the declaration and entry for the month of July shall be made during the month of August and the first twenty calendar days of the month of September.

Additional disposition first.

The acquirers of immovable property to non-residents required to retain or effect the income on account referred to in Article 24 (2) of Law 41/1998 of 9 December of the Income Tax of Non-Residents and Tax rules, must be used for the declaration and entry of the withholding tax or entry into account to be made by the model 211, approved for the purpose by the Order of 23 December 1997, referred to in the transitional provision next, not being applicable, therefore, the model 216 that is approved in this Order.

Additional provision second.

Annex II of the Order of 15 June 1995 for which the General Rules of Collection is partially developed, in the wording given to it by Royal Decree 448/95 of 24 March 1995, is amended in relation to the deposit entities that provide the collaboration service in the collection management, including code 022, "Special Autoliquidations", the following:

Model code: 216.

Denomination: Non-Resident Income Tax. Income obtained without permanent establishment mediation. Withholding and income on account.

Periodicity: Monthly, Quarterly.

Single transient arrangement.

The Order of 23 December 1997, for which the rules for the declaration of taxes on the Income of the Physical Persons, on Societies and on the Heritage, accrued by actual obligation, as well as the Gravamen, are issued Special on Real Estate Non-Resident Entities, the percentage of expenses of permanent establishments whose operations do not close a business cycle is determined, the rule of conversion to national currency of payments is established in foreign currency, is regulated the certification of the subjection of the subjection by personal obligation and amend the Orders of 15 June 1995 and 15 October 1992, will continue to be in force as long as the provisions of Law 41/1998 of 9 December of the Income Tax of Non-Residents and Tax Rules until the entry into (a) the rules to be adopted by virtue of the ratings provided for in that Law. For these purposes, the references made to the rules governing the actual obligation to contribute to the Income Tax of the Physical Persons and on Societies shall be construed as references to the corresponding provisions of the Tax on the Income of non-residents.

Single end disposition.

This Order shall enter into force on the day following its publication in the "Official Gazette of the State" and shall be applicable to statements relating to retentions and income for account effected from 1 January of 1999.

Madrid, 26 January 1999.

HANGING OUT AND FIGAREDO

Ilmos. Mr Director-General of the State Tax Administration Agency and Director General of Taxation.

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