Tax Treaty Case Law around the Globe 2012

Spain: Thin Capitalization Rules in Light of Spanish Double Tax Conventions

29.1. Introduction

In an international context, due to the different treatment of equity investments and loan financing, it may often be more advantageous to arrange the financing of a company through loans rather than by equity. Under the recently abolished Spanish thin capitalization rules, the interest paid on direct or indirect loans derived from foreign related parties in excess of the stipulated debt-to-equity-ratio was treated as dividend for tax purposes.

These rules were aimed at avoiding the excessive tax deductible expenses that the payment of interest to a foreign related company would generate in Spain. The debt limit was established as triple the resident company’s equity, such that interest on the debt in excess of the 3:1 ratio was recharacterized as a dividend, and therefore was not allowed as a tax deduction to the Spanish company.

Since 2004, the regime has not been applicable to loans derived by Spanish resident taxpayers from related EU companies as a consequence of the decision of the European Court of Justice in the Lankhorst-Hohorst case. Therefore, thin capitalization restrictions did n...