Treasury Warns of the risk of creating a society to buy real estate and pay less taxes

In recent years the creation of interposed companies has increased, those aimed at the exercise of a professional activity or simply to buy with them real estate or other assets that are then used by the partner. This is the case of Màxim Huerta, former Minister of Culture, or Pedro Duque, Minister of Science. But those operations are going to start to be more monitored by the Tax Agency that recently published an information note about its risks.

This Information Note is not mandatory for taxpayers, but it does establish clear guidelines for those who want to avoid any kind of problem with the Treasury.

"Exercising a professional activity through a company should not, in principle, pose any legal or tax problem for a taxpayer. However, the Treasury warns that, on occasion, the way of organizing the provision of these professional services may pose a risk, "says José María Salcedo, partner at the law firm Ático Jurídico.

The first thing that must be taken into account is who are the material and human means through which the services are provided. Yes of the individual, or society. Only in the first case there will be problems. For example, the case of an architect who decides to invoice through a company, even though clients hire services for their personal talent, and not for the name or fame of the company. If to this it is added that the society does not have workers or structure, the Treasury could interpret that the existence of society is unnecessary. And that only responds to the intention to tax in the Corporation Tax, with a tax rate that is not progressive, and lower than what would result from taxing in the IRPF.

In this case, the Treasury will consider that the company does not exist and that the architect or partner must pay taxes in the IRPF, applying article 16 of the General Tax Law. In this case, you will consider that there is a simulation. But it can also happen that the Treasury considers that the existence of society is not a "simulation". "Then, what it will do is value the services between the partner and his society, at a market price", adds Salcedo.

What does this mean? suppose that the architect had a payroll in his society, much lower than the benefits of it, and for which he taxed in his IRPF. What the Treasury would do is value the services that the architect provides to his society, at a market price. And force him to pay in the IRPF for that amount. And what is that market price between related parties? Normally, the one that the society charged each client. There is no better comparable, says Salcedo.

This means that the Treasury will transfer to the IRPF of the partner all the company's turnover, discounting at most 15% or 20%, in concept of the added value that the existence of the company supposes for the activity. "At the same time, all that income that the Treasury imputes to the partner, will be an expense for the company in the Corporation Tax", adds the lawyer.

Another risk that runs when forming this type of company is that of confusing the patrimony of the society with the personnel of the partner. For example, public personalities have created this type of companies that own homes, houses, cars, etc. Which in many cases were used by the partners themselves.

In this situation, the partner may have signed a lease or assignment of the house or the car. In the case of housing, the Treasury will check that the agreed amounts have been valued at the market price. That is to say, that the rental income is the same as that agreed with a third party outside the company, for that property, taking into account its characteristics, location, etc.

But if a rental agreement has not been signed, then Hacienda will consider that the member must have registered some type of income in his company, taking into account that the latter pays his personal expenses for housing, vehicle ...

In addition, the tax agency can eliminate the tax deduction in Corporate Tax (amortization) and VAT for the purchase of real estate or vehicles, since the individual or taxpayer has no possibility to deduct any amount for said purchase ( but a company).