Deductibility of the IS of the remuneration of a director with dual relationship

The Supreme Court reiterates the doctrine on the tax deductibility for Corporate Income Tax (IS) of the remuneration of a director who also performs senior management functions.

By ruling STS 4594/2023 of November 2, 2023, ECLI:ES:TS:2023:4594, the Litigation Chamber of the Supreme Court has developed how the deductibility of expenses in Corporate Income Tax should be interpreted for remuneration received by directors with executive positions, in accordance with Article 14.1.e), now Article 15.e) of Law 24/2014 on Corporate Income Tax, which regulates the non-deductibility of expenses for “donations and liberalities”.

The SC establishes as jurisprudence, in its tenth legal basis, that the remuneration in these cases cannot be considered as a liberality, since the remuneration is not received as a member of a board of directors but by the employment relationship of real and effective services.

Consequently, the remuneration, not being liberalities, will be deductible for IS, provided that it corresponds to the rendering of real, effective and undisputed services.

This is a ratification of the criterion previously set forth in the judgment of March 30, 2021 (RCA/3454/2019;ES:TS:2021:1233) and more recently in the judgment of June 27, 2023 (appeal 6442/2021, ECLI:ES:TS:2023:3071).

See Sentencia STS 4594/2023.