Deductibility of remuneration received by directors without approval by the general meeting of shareholders

The Supreme Court considers that the remuneration received by the directors cannot be considered as mere donations due to the fact that they are not approved by the General Shareholders’ Meeting or due to the commercial nature of the relationship with the company.

In the ruling of 18 January 2024, STS 214/2024, the Supreme Court considers that the omission of compliance with a provision in the Articles of Association, referring to the approval of the remuneration by the General Meeting, cannot automatically lead to the classification of the expense as a liberality and the inappropriateness of deductibility.

In this way, the SC places relevance on compliance in the accounting of the expense, as well as on the essence of the director’s remunerated activity, provided that the services are effectively rendered, as has been previously developed in the doctrine established in the STS 4594/2023 ruling of 2 November 2023.

The requirements necessary for the deductibility of the expense are also reiterated: (i) accounting registration, (ii) allocation on an accrual basis and (iii) documentary justification. Once the aforementioned requirements have been met, even if the expenses with an onerous cause have not been approved by the General Meeting, they will not be understood as a liberality and may be deducted, provided that the manner and amount of the remuneration can be deduced from the Articles of Association.

See Sentencia STS 214/2024 de 18 de enero de 2024.