Spain: New restrictions on right selling operations - impact of amended withholding tax treatment
Following our announcement A16145, dated 3 October 2016, about the change of tax treatment applicable on sales of rights, Clearstream Banking1 would like to inform customers that effective
1 January 2017
rights selling operations ordered by Spanish individuals whose positions are held through non-resident banks or financial institutions (no Spanish custodian in the chain) will no longer be allowed in Clearstream Banking.
Articles 37 and 100 of Spanish Individual Income Tax Law (Ley del Impuesto sobre la Renta de las Personas Físicas) foresees that as from 1 January 2017 the sale of rights will be taxed at general Spanish withholding tax of 19%.
As announced in our previous communication A16145, a clarification request has been introduced by the Spanish Banking Association (AEB) which has not yet been fully responded to by the Spanish Tax Authorities (STA).
However, the following elements are confirmed:
- new tax rule affects the sale of rights on any corporate event that entails a rights distribution
- the withholding tax obligation applies to any Spanish individual
- the application of the Spanish withholding tax to rights selling operation ordered by Spanish individuals is under the liability of the Spanish custodians
In order to fulfil the new tax obligations while minimising the impact on customers’ activity in the Spanish market Clearstream Banking has decided to restrict the access to rights selling operations.
Impact on customers
Rights selling operations ordered by Spanish individuals whose positions are held through non-resident banks or financial institutions (no Spanish custodian in the chain) are no longer allowed through Clearstream Banking. This applies to all rights selling operations including sales instructed via MT565 Corporate Action Instructions and via bilateral MT54X instructions.
- Each MT564 Corporate Action Notification will include the restriction rules applicable to rights selling operations for each rights distribution.
By instructing a sale of rights each customer shall be deemed to represent that the end ordering party is not a Spanish individual holding its positions through non-resident banks or financial institutions.
Customers are advised that local Tax Authorities may require Clearstream Banking to provide additional documentation, certificates, holding information and the identity of the ultimate beneficial owners ordering the rights selling operations.
Therefore, customers of Clearstream Banking instructing rights selling operation are deemed to deliver, upon request by Clearstream Banking, any documentation and information (that is, copy of ownership certificates, copy of SWIFT instructions, etc.) that is needed for Clearstream Banking and its agent to meet the information request of the local Tax Authorities and that will be remitted to such Authorities.
The Clearstream Banking customer hereby acknowledges and agrees to indemnify and hold harmless Clearstream Banking from any and all expenses (including attorney fees) costs, penalties, losses, damages, judgements, suits, tax increases or any other liabilities whatsoever incurred due to the fact that it has not instructed part of all of its positions in accordance with the above described restriction.
Please also refer to the Creation Link Guide Spain.
For further information, customers may contact Client Services or their Relationship Officer.
1. Clearstream Banking refers collectively to Clearstream Banking S.A., registered office at 42, avenue John F. Kennedy, L-1855 Luxembourg, and registered with the Luxembourg Trade and Companies Register under number B-9248, and Clearstream Banking AG (for Clearstream Banking Frankfurt (CBF) customers using CreationOnline), registered office at 61, Mergenthalerallee, 65760 Eschborn, Germany and registered in Register B of the Amtsgericht Frankfurt am Main, Germany under number HRB 7500.