SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
If the purchaser is not accredited to be tax resi - dent in an EU member state or a state within the EEA, nor in a jurisdiction with which Spain has a convention for the avoidance of double taxation in force, the purchaser would be subject to tax on the income derived from the transaction, at the general current tax rate of 19%. 7.4 Other Taxes The incorporation of the SPE is subject to but exempt from “Capital Duty” ( Operaciones Soci - etarias ) (Article 45.I.B.20.4 of the Revised Text of the Law on Transfer Tax and Stamp Duty). The incorporation and winding-up of the SPE is not subject to Stamp Duty Tax (Article 31.2 of the Revised Text of the Law on Transfer Tax and Stamp Duty). 7.5 Obtaining Legal Opinions Legal opinions usually cover taxation matters, such as the taxation of the transaction (includ - ing stamp taxes and VAT on the transfer of the receivables and on the collection services provided to the SPE) and the taxation of the investors on the income deriving from the notes issued by the SPE. 8. Accounting Rules and Issues 8.1 Legal Issues With Securitisation Accounting Rules There are three accounting issues related to securitisation: • a review of the status of the receivables in the assignor’s balance sheet prior to the securiti - sation – the receivables must be recorded as existing credit rights;
• SPEs have a legal obligation to audit the yearly financial accounts; and • credit entities transferring mortgage loans according to the regime envisaged under Royal Decree-Law 24/2021 (further described in 4.9 Banks Securitising Financial Assets ) have to create and update a special account - ing registry to keep track of the following, among other matters: (a) the total mortgage pool; (b) the MPs and MTCs issued (as defined in 4.9 Banks Securitising Financial Assets ); (c) the cédulas hipotecarias and bonos hi - potecarios issued; and (d) the final balance of the eligible collateral available versus the already issued trans- fer titles. 8.2 Dealing With Legal Issues Accounting rules do not usually trigger legal issues. There is one special case where the review of the status of the receivables in the assignor’s balance sheet prior to the securitisation is key: when the transaction involves the transfer of balloon instalments, it is necessary to confirm that, unlike leasing instalments, the balloon loan instalments are actually recorded as existing receivables.
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