The statutory stipulations of the remuneration to the Administrators and their effects on the deductibility of the corporate tax.
In this blog post, we are going to deal with content that often is unnoticed by the small and medium-sized companies, being able to be a main contingency focus with the tax authorities if the proper compliance of the commercial regulations is not adequately revised.
In the first place, we must attend to the corporate tax law, which establishes in its article 15.e) that donations are not considered as deductible expenses.
The retributions of the company directors are likely to be considered as donations if the requirements established in the Spanish corporate law are not fulfilled. This is regulated from article 217 onwards.
For that purpose, the first requirement is that the remuneration of the company’s administrator is specifically regulated in the society’s statutes since in case of omission it will be considered that it is for free.
Besides, it will not be enough with the designation of the administrator’s position being retributed, but it should be established in a remuneration framework that allows the conviction about the retribution. For it, the Corporations Law, administrative doctrine, and the jurisprudence have established the following fundamentals:
- If there is monetary remuneration, a maximum has to be established for the compilation of the administrative organ. As well as establishing the possible payment in kind and the possible meeting attendance fees.
- In the case that a participation/share is established for the benefit of the statutes a maximum percentage should be fixed, complying with the following limitations depending on if it is a public limited company (SA) or limited liability company (SL).
o SL: The percentage cannot be over 10% of the distributable profits amongst partners.
o SA: The percentage will be applied after the legal and statutory reserve is covered and when it has been recognized to the shareholders a dividend of 4% of the nominal value of the shares or over in case that has been previously gathered in the society statues.
- In the case of the SA, it can be remunerated through the delivery of shares or stock options, the maximum number of shares per year must be specifically regulated, as well as the price or calculation system.
Therefore, and once the framework has been regulated in the society’s statutes, the following requirement will be the approval through the meeting of partners of the remunerations that have to be perceived for the total compilation of the administrative organ.
- If there is monetary remuneration, they must establish a maximum retribution amount.
- In the case of a percentage in the profits of the company, the exact percentage of it must be established.
If the administrative organ is not unique, the administrators through the Council will have to decide how to distribute between them the maximum annual retribution, having to follow rational criteria, and according to the functions performed by each of them.
Once these requirements have been accomplished, the annual expenses for the remuneration of the directors of the company for the performance of their functions may be considered tax-deductible.
From Devesa&Calvo we can advise you on the deductibility of this type of expenses in your company and help you establish the remuneration framework that best suits the interests of the Administrators and Members.
Lawyer and Economist in Devesa & Calvo Abogados. Tax Area.