Tax regime applicable to companies in the process of incorporation in the Commercial Register

Attribution of income tax liability for shareholders during the period between incorporation and registration of the company in the Commercial Register.

Attribution of income tax liability for shareholders during the period between incorporation and registration of the company in the Commercial Register.

The Supreme Court (SC) ruling of 17 June 2024 (ECLI:ES:TS:2024:3374) addresses the tax regime during the interval between the incorporation and registration of a limited liability company in the Commercial Register, determining whether it must pay Corporate Income Tax (IS) or whether its shareholders must pay Personal Income Tax (IRPF) under the income attribution system.

The SC based its decision on the Corporate Income Tax Act, which establishes the legal entity as the taxpayer, and on the Capital Companies Act, which requires registration for the incorporation of a capital company. The General Tax Law also considers legal entities as taxable persons, obtaining full legal personality only upon registration in the Commercial Register.

The SC determined that the key date is 31 December, the date of accrual of IS. If the company is not registered by then, the income must be attributed to the shareholders and taxed for personal income tax purposes. Thus, the SC underlines the importance of registration in defining the legal personality and tax regime of companies in incorporation, differentiating between registration and tax rules.

In this case, the deed of incorporation of a company was filed with the Commercial Register of Seville on 16 December 2014, but it was not registered until 12 June 2015, so the criteria of the Seville Tax Management Office is held, which determined that the 2014 income should be taxed in the personal income tax of the partners, as the company did not have legal personality on 31 December 2014.

The SC ruled in favor of the General State Administration, concluding that the company is not subject to IS until its registration, so the income should be attributed to the shareholders and taxed in the IRPF.

This ruling means that the shareholders of companies in the process of incorporation must ensure registration in order to avoid tax regularizations and understand that, until then, the income will be attributed to them and will affect their personal taxation.