In the Resolution dated 18 December 2023, the TEAC has modified the criteria in relation to the fact that it is not sufficient to invoke the existence of the commercial link between the company and the directors and members of the Boards of Directors, without considering the existence of the employment relationship of senior management, as well as the possible exemption for the compensation provided for in article 7.e) of Law 35/2006, of 28 November, on Personal Income Tax, referring to the dismissal or termination of the employee.
The change in criteria is based on the recent Supreme Court rulings STS 4594/2023 de 2 de noviembre 2023 y , STS 3071/2023 de 27 de junio de 2023, in which it is held that it is not possible to disregard the senior management employment relationship and the possible compensation that may arise from the relationship that links the directors and members of the boards of directors with the company.
Thus, the exemption of article 7.e) of the IRPF Law is applicable to directors and members of boards of directors in the case of compensation for unfair dismissal, of 20 days’ salary per year with a maximum of 12 monthly payments, or corporate withdrawal of 7 days’ salary per year with a maximum of 6 monthly payments.
As a consequence of the criterion applied, in the event that a court of law determines that there is no agreement between the parties (company and directors or members of the board of directors) and the company is not entitled to the compensation for unjustified dismissal, the company will be entitled to the compensation for unjustified dismissal.
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Joint directors are not a collegiate body and must act jointly. The granting of a power of attorney to one of them cannot be made