By Manuel Godia Castillo, Senior Associate Tax Area.
In the period of time that elapses from the granting of the public deed of incorporation of a Company in formation until its definitive registration in the Commercial Registry, several weeks may pass. This period may be extended, especially if remediable defects are detected that prevent its registration.
As a result of the above, the Supreme Court has issued a relevant ruling in relation to the subjection to Corporate Income Tax (CIT) of companies in formation. The ruling analyzes whether a Limited Company, during the interval between the granting of the deed of incorporation and its registration in the Commercial Registry, can be considered a taxable person for CIT. Or, on the contrary, whether the income obtained should be attributed to its partners in the Personal Income Tax (PIT).
The Supreme Court reaffirms the doctrine already established in its resolution of July 3, 2012. It argues that registration in the Commercial Registry determines the acquisition of the legal personality of the company. In this sense, it adheres to article 33 of the TRLSC, which establishes that companies acquire legal personality with registration. Therefore, until that moment, they cannot be considered a taxable person for CIT.
The ruling clarifies that the income generated before registration in the Commercial Registry should not be taxed at the company’s headquarters. But rather that it is attributed to its partners, so it will be subject to Personal Income Tax.
The Supreme Court emphasizes the importance of registration. This is key to the acquisition of legal personality and its subjection to tax regulations, not only providing clarity on the taxation of companies in formation, but also reaffirming the need to comply with legal requirements. This avoids tax conflicts. The ruling reminds entrepreneurs and legal professionals of the importance of correctly formalizing companies and understanding their tax implications.
(Supreme Court, of June 17, 2024, rec.nº.331/2023)
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