Have your clients paid high Inheritance or Gift taxes in Spain in the past?

Gunnercooke

Pursuant to the European Court of Justice´s decision of the 3/9/2014 they could be entitled to ask for a refund

The Spanish inheritance and gift tax is a national tax but the Spanish Government transferred it to the regional bodies (autonomous communities), who have autonomy to legislate and collect the tax. The autonomous communities have legislated a number of tax benefits that are applicable to taxpayers, resident in their regions.

The key point is that most of the Autonomous Regions have introduced tax benefits to their residents, i.e. in the Balearic Islands (Mallorca, Ibiza or Menorca) the inheritance transfers between immediate family members, if they are residents, are taxed with a maximum of 1% in most estates.

The problem is when we are talking about non-Spanish residents because the tax is not transferred to the regional bodies and the state rules apply without the said benefits. This implied that in the past a person who was not resident in Spain was paying a higher Inheritance tax than a person who was resident in that country. This was clearly a discrimination within the EU and many groups of affected individuals and professionals complained before the EU Courts.

In 2007 the European Commission sent a warning to Spain about a potential incompatibility between the Spanish inheritance and gift tax rules with Articles 21 and 63 of the TFEU and Articles 28 and 40 of the EEA. The Commission formally requested Spain on the 5th May 2010 and 17th February 2011 to take action to ensure compliance with EU rules. As Spain failed to take action, the Commission decided to take Spain to the CJEU and the European Court of Justice declared in its Decision dated 3th of September 2014 that this legislation breached the free movement of capital and it was contrary to the European laws. Spain was therefore forced to amend its legislation in that way.

Knowing that at present the inheritance or gifts between non-Spanish residents have the same benefits that residents have, the key questions are:

What about the taxes already paid by non-Spanish residents before that European Decision? Can we claim a refund for the excessive taxes?

The effects of the CJEU Decision 3/9/14 are not temporary limited and therefore if your clients have paid the inheritance or gift tax in Spain as a non-resident they should be able to claim for the reimbursement of the excess paid.

We would recommend contacting a Spanish Lawyer to review the Inheritance or Gift taxes already paid by your clients in Spain before 2014, and more importantly, if your clients are going to pay taxes in the following months, a Spanish Lawyer will also help them to decide the best way to minimise taxes, without the need to appeal for a refund.

On the other hand, we would also recommend your clients when buying in Spain, to consider the different tax rates and take into account the different regions and their tax rule, before deciding where to buy. We all know that laws can change, but why do not take this into account if it can help clients to save some money?

Claudia Font & Antonio Guillen

Spanish lawyers at gunnercookellp

1 Cornhill London EC3V 3ND 53 King Street Manchester M2 4LQ

 

E-mail: claudia.font@gunnercooke.com       E-mail: antonio.guillen@gunnercooke.com

D: 07788585115                                                  D: 07872808598

 

 

Spanish Powers of Attorney signed in the UK

image-for-poaA new Spanish case Decision by the Director General of Notaries and Registrars in Spain (DGRN) has been issued on the 14th of September 2016 affecting Spanish Powers of Attorney signed abroad and therefore also those signed in the United Kingdom.

The said decision of the DGNR rejected the registration in Spain of a purchase transaction where a Spanish Power of Attorney signed before an English Notary Public had been granted. The reason for rejecting the registration of the document was that the Land Registrar considered the powers and faculties of the English Notary Public who notarised the Power of Attorney (POA) not sufficiently proved.

Under the aforementioned Decision, a foreign POA should have the same structure than the Spanish public documents. This means that the document should be signed by an authorized person with capacity to give faith and certify the identity of the donor/grantor and his/her capacity.

 

This Decision stated that the foreign POA should also mention that it will be legalized according to the relevant International rules. In the case of a POA signed in the UK, this means the legalisation of the document with the apostille of the Hague Convention.

 

The key point is to ensure on the document that the UK Notary public is giving sufficient warranties to the relevant Spanish authorities as to the capacity of the donor/grantor. From now on, a Spanish POA where the UK Notary Public is restricted to certifying the identity of a person will not be sufficient. A Judgment on capacity will also be required.

 

We are of the opinion, that the said decision cannot be extrapolated to all cases. The power of attorney that created this “storm” of doubts was a power of attorney solely drafted in Spanish and the Notary Public in question limited his involvement to adding a certificate to the power of attorney which lacked any mention to capacity. We therefore think, and hope, that Spanish Notaries and Land Registrars will reconsider their position with regards to the powers of attorney executed in the UK and will soon start to recognise these again. However, there could be the odd exception where a Spanish Notary or Land Registrar will turn down a perfectly valid power of attorney executed in the UK. To avoid these kind of situations, some carefully attention needs to be put into the drafting of the power of attorney to ensure that the document has a higher chance of being accepted in Spain.

Do not hesitate to contact gunnercooke’s Spanish desk if you require further information or help with the signing and execution of a Spanish Power of Attorney in the UK.

Honorary Consulate of Spain in Manchester

Picture with Patricia Roldan

CONSULADO HONORARIO DE ESPAÑA EN MANCHESTER

Antonio Guillen Hederich is the Honorary Consul for Spain in Manchester since June 2013.

An Honorary Consul is a person who voluntarily provides help assuming the functions that the General Consulate delegates on him. In the case of Antonio, his functions depend on the General Consulate of Spain in Edinburgh.

In the UK there are two General Consulates, one in Edinburgh and one in London.

Antonio’s area of jurisdiction is North Yorkshire, West Yorkshire and Greater Manchester and his main tasks are to help with the first passports and passports renewals of Spanish children in the mentioned area that are less than 12 years old. For that, he gives faith that he has seen the minor and the parents stamping and signing the corresponding forms and he checks that the documentation is ready to be sent in a special delivery to the Consulate in Edinburgh that will process the passports.

Antonio also can assist in certain circumstances with the NIE applications (Número de Identifidad Extranjero) for those British individuals that need a tax identification number for any official transaction in Spain.

The Honorary Consulate is located in the building of gunnercooke LLP law firm in Manchester.

As well as the Honorary Consul, Antonio is a dual qualified Spanish lawyer and English solicitor working for law firm gunnercooke LLP. Together with his usual Notary Public, Antonio can prepare powers of attorney and wills for Spain as well as advise on Anglo-Spanish matters.

For further information, please contact Antonio Guillen on 07872 808 598.

Patricia Roldan

Picture: Antonio Guillen and Patricia Roldan in a recent consular event.

WHAT IS THE ENERGY PERFORMANCE CERTIFICATE (CERTIFICADO DE EFICIENCIA ENERGETICA)?

 

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From June 1st the Energy Performance Certificate will be required in all contracts of sale or rental in Spain. This regulation comes from a European Directive and it is already in force in other EU countries.

This certificate analyzes the demand and energy consumption of a building and its result is summarized in a label very similar to what we’re used to seeing in appliances. With a color code, it classifies households according to a scale ranging from the highest category, the “A” (lower consumption), to the lowest, the “G” (higher consumption). It also incorporates some measures recommended by the relevant technician in order to consume less and reduce the amounts of the bills.

Be aware that the certificate should be included in the information that the seller or landlord must provide to the purchaser or tenant when selling or letting the property, so this document should be available before entering into any transaction. The Energy Performance Certificate is valid for 10 years.

A qualified technician must visit the property and take the necessary information to issue the certificate and sign it. You don´t need a particular grade to sell or rent your home. You just need to ensure that you get this certificate for prospective tenants or buyers. However, a good grade will definitely add value to the property.

The cost of the energy performance certificate shall be determined by the market. There are no official prices for this work, and currently there are a lot of companies offering this service, but you must be careful, because the Energy Performance Certificate should be signed by a competent technician like an Architect, Technical Architect, Engineer and Technical Engineer, and it must be authorized by the Ministry of Industry.

There are some exceptions to this obligation of providing the certificate and we take the opportunity to mention the most important ones:

  • Isolated buildings or units with a total useful floor area of ??less than 50 m2.
  • Buildings or Properties used or intended to be used for either less than four months a year or for a limited time a year and with expected energy consumption of less than 25% of which would be of use throughout the year.

If you are interested in selling or letting a property, we can help you checking if it is applicable to your property or not, and if you need it, we can deal with several companies authorized to issue these type of certificates.

This article has been written in collaboration with David Lorenzo García, Spanish lawyer and intern at DWF LLP.

 

Can I renounce to an inheritance in Spain?

A Business Men Climbing a Pile of Papers

 

 

 

 

 

 

 

 

In most occassions, inheriting from a dead relative or friend comes associated with an increase in wealth. The heir or beneficiary inherits the assets or money that the deceased had and once the inheritance tax is paid, which sometimes can prove very expensive, the heir is left with a property in Spain and hopefully some money in the bank. This, once we dettach it from the pain and grievance caused by the death of the loved one, usually has a positive side. There will be a property in Spain that can be sold, let or used during holidays. If the property is sold, the heir will be able to get some money after the sale and hopefully spend it or save it as he wishes.

However, this is not always the case. In some cases the property might be charged with a Spanish mortgage leaving no equity for the heir. In other occassions the property could be subject to very high maintenance expenses such as community fees, golf course fees, etc that make the whole thing of owning the property more burdening than having no asset at all. Finally, it may be the case that the inheritance tax due on the Spanish assets is extremely high and the heir is unable to pay it without selling the property. In those circumstances it is normal for the heir to question his intentions and weigh the possibility of renouncing to the Spanish estate.

In general terms, renouncing to the Spanish estate is not a good idea because in most of the cases there will be a property that can be let out or sold. Sometimes it will be a matter of waiting a few years until the market picks up or the mortgage is paid off, but most people do not renounce to what they inherit in Spain. Notwithstanding this, it is true that there is a small percentage of heirs that are not interested in inheriting the assets in Spain and who see the Spanish property more as a burden than an asset. In those circumstances, the heirs can renounce to the Spanish estate and their rights will pass to either the substitutes under the will or to their own beneficiaries, which usually means their children. This is something that needs to be considered before making any renounciation because the renounciation can trigger further consequences that may prove even more detrimental. For instance, imagine that Joe Bloggs dies with assets in Spain. His Spanish will states that everything will go to his daughter Isabelle. She is not interested in the Spanish property and therefore decides to renounce. However, the will states that if Isabelle renounces, everything will go to her children (the grandchildren of Joe Bloggs) and the said children are minors. Under Spanish law, minors cannot renounce to an inheritance without the consent of a Judge. This means that the inheritance will reach a dead point where the minors can accept the estate but not reject it without the consent of a Judge. As you can see this has caused an even bigger problem.

The above is one of the scenarios that can arise. The important thing is to seek legal advice before making any decision in this regard. Do not listen to those who say that you cannot renounce to a Spanish inheritance because this is not true. Anyone, who is of age, can renounce to the Spanish inheritance but before doing it they should seek legal advice to ensure that they understand the consequences of the renounciation and see the different options available. The heirs might be surprised to see that they can transfer their rights to a specific person who might be more interested in the property than them.

 

How to set up a Spanish company

 Man writing a check

 

 

 

 

 

 

 

 

“Spain will be the next Germany!” This was the headline in “EL PAIS” last week, a popular Spanish newspaper.

Is this true? Well, even though the headline may be exaggerated in my opinion, there are grounds for optimism as recent labour reforms will  benefit business development and the fall in salaries will increase both investment opportunities and businesses.

Times are tough, yes, but this is also a time of change and evolution.  We have seen an increase of enquiries from UK companies wanting to do business in Spain or set up a Spanish Limited company. Sometimes this is due to tenders or “one of” jobs but in other occasions we have seen UK corporate clients willing to enter into the Spanish market in very niche areas where there is a lack of specialisation or specific products needed.

But how is it done? Is it difficult to create a Spanish SL (Limited Liability company)?

Creating a Spanish SL when the shareholders are individuals is not complicated. It is a matter of choosing a name and then incorporating the company at the Notary’s office in Spain. On the other hand, complications start to appear when the Spanish company will be owned by a UK company. Below you will see a list with the steps that need to be taken to incorporate a Spanish Limited company when the shareholder is a UK company.

–          First of all, before creating a company we must decide its name and this involves applying for a Negative Certification of Name with the Spanish Companies house. This certification will indicate whether the name is available or not.

–          Once you have the name secured, you will have to go to the tax office in Spain to apply for the UK company’s  CIF  number (Tax Identification Number). However, this tax number will not be given unless you provide the Tax office with certified and translated copies of the company’s corporate documents. This means supplying the certificate of incorporation, memorandum and articles of association duly legalised and translated.

–          At the same time, you must open a Bank account in Spain, in which you will deposit the necessary capital for the company. The minimum capital is € 3,005.06 but nothing stops you from setting up a higher capital if this is convenient.

–          The incorporation of the Spanish company needs to be signed by the Director at the Notary’s office in Spain. If the Director cannot attend the signature, a power of attorney can be sorted and given to someone to act on his behalf.

–          Once the Deed of incorporation is signed, the stamp duty needs to be paid and the company will get registered with the Spanish Companies house.

–          If the company is going to have employees, the final step is to register the company with the Social Security Schedule because if not, the company will be unable to enlist its employees with the Social Security.

All these procedures should be done in person. If the procedure seems complicated to you, then the best thing is to instruct a firm of lawyers like ourselves or any other similar firm with experience in this field to prepare the documentation in the UK and the incorporation in Spain.  Your lawyers should also be able to put you in touch with the various Chambers of Commerce of the different regions in Spain which will inform you of the benefits for new incorporated companies as well as any potential business opportunities.

Holiday rentals in the Canary Islands

 

If you read internet forums or you are subscribed to internet news bulletins related to Spain, you would have probably come across many angry Britons who have been suddenly fined for renting their apartments in the Canary Islands without the necessary permissions.  In some cases, the fines are imposed because the property owner has let the property without a licence but in other cases the fines are imposed because the property has not been signed up with a management company.

Tourist Law 1995 of the Canary Islands states that all tourist accommodations in a specific development should be managed by one single company. This means that all the owners in a development who are planning to let their properties for short periods of time must agree to instruct the same management agent and inform the local authorities appropriately. The owners who forget to do the above will be deprived of the right to let their properties and will be fined with relevant amounts.

The authorities in the Canary Islands have appointed several inspectors who will be  checking developments, asking the agents for the required documents, looking at rental websites and sometimes even impersonating a potential tenant in order to catch illegal rentals. 

The main problem is that the amount of the fines can be disproportionate to the profit obtained. That is why if someone has been contacted and informed of a potential fine, it is worth to seek legal advice and see if it is possible to challenge the fine.  In those cases where the challenge is not possible, a reduction in the fine is always a possibility and negotiations with the Authorities can be advisable.

Photograph from www.dreamstime.com

European order for payment procedure

 

A debtor is always a debtor, both in Spain and in Britain. Whether is an outstanding invoice or a debtor who does not want to pay, the usual way to ensure payment is going through the legal route.  Sometimes matters can get more complicated if the creditor and the debtor live in different countries or the debtor has assets in another jurisdiction.

When it comes to Spain, some national laws have implemented an order for payment procedure called monitorio. The basic aim of this procedure is to avoid complex procedures when dealing with uncontested debt claims. The Court becomes a sort of intermediary which receives a form from the claimant asking the debtor to pay.  Then, it issues an order for payment which is sent to the debtor.  If the debt is uncontested, the order remains in force and becomes a judgement. If the debtor contests the claim, the matter will be examined in an ordinary Court hearing.

Today this procedure can be put into practice in cross-border cases within the European Union thanks to the EC Regulation 1896/2006. This Regulation applies to both Spain and Britain, and allows a prompt recognition of European orders for payment.

The advantages of the European order for payment procedure or monitorio are huge: it is a simple procedure, useful for international pecuniary claims and easy to put into practise. In fact, it can be used even by and against individuals.  For example: a creditor applies for a European order for payment. If the defendant does not contest the petition, this will become final. And this order will be recognized all around the European Union (except for Denmark).

So, how does the procedure work?

1. The creditor fills in a standard form which appears in the EC Regulation. This form is the same for all EU countries. There should not be any problems with the language and it is not necessary to attach any proofs of the debt (bills, invoices, etc).

2. After examining the form, the Court contacts the debtor and demands payment. Then the debtor has three options:

    -He can pay, and therefore the procedure comes to an end.

    -He can ignore it. Then after 30 days the European order will be enforced.

    -Finally, he could contest the order. In that event, the next step will be a Court hearing (unless the claimant has discarded this possibility when filing the forms).

3. In the event of uncontested orders, the creditor will be able to enforce the order in the same country where the initial procedure was started or in any other country of the European Union where the debtor may have assets. For instance, lets imagine a chap called Joe Bloggs who is a British national but living inMarbella. He owes money to John Sixpack, who lives in Leeds. John Sixpack files for a European order for payment procedure at the Court which holds the specific jurisdiction according to European rules, which in this case could be Marbella. Joe Bloggs ignores the claim and eventually the order becomes enforceable. However, when trying to enforce the order, John Sixpack discovers that Joe Bloggs has a house  in Germany which is free of charges. John should be able to enforce the European Order in Germanywithout having to start a legal procedure from scratch.

This procedure can be very useful in cross-border matters within the European Union but as usual it is always convenient to speak with a lawyer and see the most suitable option for each case as the information contained in this article cannot be generically extrapolated to all kind of circumstances.

 

Photograph by www.dreamstime.com

The fast and the furious- New speedy eviction laws in Spain

 

 

 

 

 

 

 

An unoccupied property is a lost opportunity to make money. After the summer, thousands of holiday apartments are vacant until the following holiday season. Many of the British who have purchased Spanish property are not using them for the rest of the year.  A good option for them is to rent them out. However, many are uncomfortable to commit to long term rentals due to the slowness of the Spanish eviction system.

Having a defaulter tenant in your holiday apartment can be a real nightmare as it could take you 1 year to evict him from the property. The Spanish Government is determined to improve the legal mechanism to warrant an efficient eviction system and has recently issued new laws which, between other points, are meant to speed the eviction procedure. The aim of the laws is to improve efficiency, avoid long term bureaucracy and increase the confidence in the legal system.

Since the enactment of new laws, the petitions are meant to be resolved in shorter periods of time. Less time should also mean less cost. In fact, eviction will now be possible even without any hearings.  A very simple petition to the Court will be sufficient. Once the petition has been admitted, the tenant will have two options:

A. He can object to the landlord’s petition. Then both landlord and tenant will be summoned to a hearing

B. He can ignore the proceedings, in which case he will be sentenced to evict the property and in certain cases, to pay the amounts owed.  

To avoid unfair situations, the tenant will only be able to appeal the decision if he deposits the amounts owed in the Court’s escrow account.

The initiative is really positive to improve the rights of both landlords and tenants. Renting properties should be considered a worthy option.

Citizens in general will welcome the new laws, although its success will rely not only on theoretical law but in its practical implementation. Lets remember that good intentions and changes in law can prove fruitless if they do not come along with some improvements in the current bureaucratic system.  

 Photograph from www.dreamstime.com

Can I buy my Spanish property in sterling?

 

 

 

 

 

This week a client who lives in the UK asked me if he can pay in sterling the purchase price of a house he is buying in Spain. The truth is that this is not an impediment. On the day of the signature of the purchase deed, the Notary will request evidence that the payment has been made i.e. a copy of the cheque. The purchase deed will also reflect the fact that the price has been paid in sterling and will show its equivalent amount in euros, which at the end of the day will be the one used for tax purposes and for the calculation of the transfer tax.

This is a scenario that is more and more often these days. Many Brits have bought properties in Spain and they are now willing to sell them. At the same time, other Brits who are currently cash privileged are still interested in buying in Spain and very often the transaction involves UK nationals on both sides. In this type of transactions, the parties might be interested in securing the deal in sterling in order to avoid currency fluctuations so this is something that I am seeing with enough frequency.

Food for thought if you are planning to buy in Spain and do not need a mortgage.

 

Photograph by Yusputra/dreamstime.com