SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
• Prospectus and deed of incorporation – sev - eral legal references shall be included in the prospectus and the deed of incorporation related to: (a) the nature of the SPE as a Spanish securitisation fund incorporated under the Spanish Securitisation Law; (b) the non-applicability of the Spanish Insol - vency Law to the SPE; and (c) the application of Article 16.4 of the Spanish Securitisation Law, Article 15 of Law 2/1981 (which is now contained in Article 42.2 of the Spanish Mortgage Mo - bilisation Regulation) and the First Addi - tional Provision of the Spanish Mortgage Mobilisation Regulation. • Legal opinion – the drafting counsel custom - arily prepares a legal opinion covering the whole transaction, with the following being specifically mentioned: (a) the absence of severe claw-back provi - sions for the transfer in the event of the seller’s insolvency; (b) the non-application of the Spanish Insol - vency Law to the SPE; and (c) the consequences of the insolvency of the management company of the SPE (ie, the replacement by another management company pursuant to Article 33 of the Spanish Securitisation Law).
es within Spanish VAT territory or has a perma - nent establishment within the Spanish VAT terri - tory to which the service is supplied, the transfer would be subject to VAT in Spain, but exempt. Note that the services rendered by the seller to the purchaser, consisting of the collection of the payments made by the obligors, would be con - sidered a separate transaction. According to the Spanish general VAT location rules, such collec - tion services would be deemed to be located in the jurisdiction where the purchaser is estab - lished for VAT purposes. In addition, provided the assignment of the receivables is formalised by means of a pub - lic deed and meets certain requirements (ie, the receivables have an ascertainable value; the transaction has a document that can be regis - tered in a public registry, regardless of whether it is effectively registered; and the receivables are not subject to transfer tax, capital duty or inherit - ance gift tax), the assignment shall be subject to stamp duty. Tax rates currently range between 0.5% and 2%, depending on the autonomous region in which the public deed is to be reg - istered. However, a specific exemption from this stamp duty tax applies when the origina - tor assigns MTCs or MPs over mortgage loans. This exemption is governed by Royal Decree- Law 24/2021 and by transfer tax and stamp duty legislation. 7.2 Taxes on Profit The SPE is subject to the general provisions of the Corporate Income Tax (CIT) Law. The taxable base is calculated in accordance with the provi - sions of Section IV of the CIT Law. The current applicable tax rate is 25%. The SPE’s CIT taxable base should be close to zero if its financial income (interest earned from
7. Tax Laws and Issues 7.1 Transfer Taxes
Under Spanish value-added tax (VAT) legislation, the transfer of receivables would be a supply of services for VAT purposes, which would be deemed to be located in the place where the recipient of the services is established for VAT purposes. Therefore, as long as the recipient of the services (SPE) is established for VAT purpos -
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