Donacion participaciones sociedad limitada
In order to enjoy the IP exemption it is necessary that the partner owns at least 5% of the capital of the entity. If this percentage is not reached, the exemption can also be enjoyed if he and his relatives (spouse, ascendants, descendants and collateral relatives up to the second degree of both the partner and the spouse (by consanguinity, affinity or adoption) own at least 20% of the capital stock.
The partner, his spouse or any of his ascendants, descendants or collateral relatives up to the second degree must exercise managerial functions in the company (manager, administrator, department director, etc.) and their annual remuneration for such position must exceed 50% of the total income from work and economic activities.
Taxation of the donation of shares. In a previous article we dealt with the modifications introduced in the law on inheritance and gift tax in Andalusia. Donations made free of charge enjoy a 99% reduction in the tax liability. You can have a look by clicking here.
The exposed case is that of a retired couple over 65 who decide to donate to a son part of the shares of a company of which they are owners. They do not hold the condition of administrators and do not receive any remuneration.
The law states that there will be no capital gain for the lucrative transfers of companies or shares referred to in section 6 of article 20 of Law 29/1987, of December 18, 1987, on Inheritance and Gift Tax.
This operation requires a left hand and delicacy in order not to fail to meet the expectations of each child, but it also requires knowledge of taxation. The transfer to descendants of shares or shares in a company is a full-fledged donation that has tax implications for both the donor and the donee. On the one hand, the one who receives the shares or participations will have to pay the tax on donations of autonomous community competence, and on the other hand, there may be an alteration of the donor’s assets subject to personal income tax. Let us see them in detail.
Article 3 of the Inheritance and Gift Tax Law establishes that the acquisition of goods and rights by donation or any other legal transaction free of charge will constitute a taxable event.
On the other hand, Article 5 of the same law determines that those individuals favored by donations and other comparable lucrative transfers «inter vivos» will be obliged to pay the tax.
In general, the donation of shares, assuming that the donor meets the personal requirements of capacity and legal standing, is free when the acquirer is the spouse, ascendant or descendant of the transferor.
Thus, Article 107 of the Capital Companies Act (LSC) (formerly Article 29 of Law 2/1995, of March 23, 1995, on Limited Liability Companies) states: 1. Unless otherwise provided in the bylaws, the voluntary transfer of shares by inter vivos acts between shareholders, as well as those made in favor of the spouse, ascendant or descendant of the shareholder, shall be free. Therefore, from the law it is deduced, sensu contrario, the possibility that the bylaws have restricted the free transfer and the bylaws will be applied in each specific case.