Today we will look at one of the most well-known obligations but which at the same time generates the most doubts, especially in those who begin an economic activity, either as self-employed or through a commercial company. As the title suggests, we refer to the obligation to make withholdings and payments on account.
To this end, we echo the binding consultation of the General Directorate of Taxes number V1357-17, of June 2, on the need to include withholding in the invoices issued.
The general rules of the obligation to withhold or pay into the Personal Income Tax are established in articles 74 to 79 of the Personal Income Tax Regulations, approved by Royal Decree 439/ 2007, March 30.
In the first paragraph of section 1, article 74 of the Tax Regulations, the basic rule for the practice of withholdings or payments to accounts is established, providing:
| “1. The persons or entities referred to in article 76 of this Regulation that satisfy or pay the rents provided for in article 75, will be required to withhold and deposit in the Treasury, as payment on account of the Personal Income Tax corresponding to the recipient, in accordance with the rules of this Regulation.” |
The following conclusions are derived from this precept:
1st To be required to withhold personal income tax, the withholder must be included in article 76 of the Tax Regulations.
2nd It will only be necessary to withhold when income included in article 75 of the aforementioned Regulation is paid.
Therefore, the first thing that a payer of income subject to personal income tax must analyze is if it is included among those obliged to retainTo do this, you must go to article 76 of the Tax Regulations, which establishes:
| “1. In general, they will be obliged to retain or deposit on account, as soon as they satisfy income subject to this obligation:a) Legal persons and other entities, including communities of owners and entities under the income allocation regime.
b) Taxpayers who carry out economic activities, when they satisfy income in the exercise of their activities. c) Natural persons, legal entities and other entities not resident in Spanish territory, which operate there through a permanent establishment. d) Natural persons, legal entities and other entities not resident in Spanish territory, which operate there without the mediation of a permanent establishment, with respect to the income from the work they satisfy, as well as with respect to other income subject to withholding or deposit on account that constitute a deductible expense for obtaining the income referred to in article 24.2 of the consolidated text of the Non-Resident Income Tax Law. A person or entity will not be considered to satisfy income when it is limited to carrying out a simple payment mediation. Simple payment mediation will be understood as the payment of an amount on behalf and by order of a third party.” |
As may have been observed, They do not have to retain those who do not act as professionals or businessmen, that is, private clients who do not carry out an economic activity.
Continuing with the aforementioned precept, those obliged to withhold must practice the same when paying the income provided for in article 75 of the Tax Regulations as subject to withholding, regardless of whether or not the recipients have included the corresponding withholding in the invoice issued:
| “1. The following income will be subject to withholding or payment on account:
a) Work income. b) The income from movable capital. c) The income from the following economic activities: The performance of professional activities. Income from agricultural and livestock activities. Income from forestry activities. The income from the business activities provided for in article 95.6.2.º of this Regulation that determines its net income by the objective estimation method. d) Capital gains obtained as a result of the transfers or reimbursements of shares and participations representing the capital or assets of collective investment institutions, as well as those derived from forestry exploitation by residents in public forests.
2. The following income will also be subject to withholding or payment on account, regardless of its classification: a) Income from the leasing or subletting of urban properties. For these purposes, references to the lease will also be understood to be made to the sublease. b) Income from intellectual and industrial property, from the provision of technical assistance, from the leasing of personal property, businesses or mines, from the subleasing of the above assets and from the transfer of the right to exploit the image right. . c) Los premios que se entreguen como consecuencia de la participación en juegos, concursos, rifas o combinaciones aleatorias, estén o no vinculados a la oferta, promoción o venta de determinados bienes, productos o servicios.” |
Therefore, there is no legal or regulatory rule that requires recipients of income subject to personal income tax withholding or payment on account to include the corresponding withholding or payment on account on the invoice issued.
To this end, The person obliged to make the withholding and pay it to the Treasury is the payer., that is, the person who made the purchase or contracted the service, regardless of whether the issuer of the invoice has indicated it or not.
This fact is important to take into account since as subjects obliged to withhold or make payments on account we will be responsible for presenting the declaration of the amounts withheld or payments on account made (or negative declaration when the practice of the same had not proceeded), in addition to the corresponding annual summary declaration, without us being able to allege as a cause for the lack of presentation and payment the lack of communication by the recipient of the income subject to withholding.
Fountain: http://asesor-contable.es/obligacion-de-retener/#ixzz4tOh1Ofmq
