One of the purposes pursued by the Tax Agency is the control of tax obligations through the correct application of the rules. In the case of the filing of companies by natural persons, The objective of the Tax Agency is to guarantee the regularization of instrumental companies; that is to say, those that have been established to carry out activities that are actually carried out by a natural person, but under the umbrella of a company to take advantage of its tax advantages.
What does the law contain??
As stated in the law, A taxpayer is free to freely choose the way in which he decides to carry out his activity., whether as a natural person or as a company. However, This freedom does not imply that the AEAT accepts the legal validity of any operation of a natural person through a company.. To this effect, The administration must verify that this practice is not intended to reduce the tax burden through the use of the company.
For this reason, The administration must determine whether the material and human means through which the activity is carried out are owned by the legal entity or the natural person.. In the event that both legal entities have such means, It will be necessary to review whether the company actually intervenes in the carrying out of the operations.
If the company did not have a structure to carry out the professional activity, or even having it, it is verified that there is no intervention of the same in the carrying out of the activities, the company would be considered a mere formal interposition, Therefore, the AEAT should regularize it according to the simulation figure established in the article. 16 of the law 58/2003, of 17 December, General Tax. However, in the event that it is determined that the entity has adequate material and personal means and that it has really taken part in the development of the activity, It must be analyzed whether the benefits provided have been valued in accordance with the provisions of the article 18 of the Law 27/2014, of 27 November, of the Corporation Tax. When the Tax Agency detects an error in said assessment, must regularize, or, where appropriate, sanction cases in which there is an unlawful reduction of the tax burden derived from an incorrect valuation of the operations..
Besides, in the note published by the AEAT, A section is included on the transfer of income in corporate structures.. In this section, Special attention is paid to the confusion that may sometimes exist between the partner's assets and those of the company., given that on certain occasions the company usually makes use of the partner's homes or vehicles without any prior contract.
All these behaviors that are outside the regulation could entail regularizable contingencies in personal income tax., Corporate Tax, VAT and Wealth Tax.
Given the complexity of the management that this entails, in Vazquez & Manchón we can advise you on the correct organization and accounting of your company or business, whether you are self-employed or have established some type of company, offering comprehensive and quality monitoring. Don't hesitate to contact us!
