PATENT BOX: Amendments effective for tax periods starting from 1 January 2018

Article 23 of the Corporate Income Tax Law 27/2014, of 27 November, is amended to adapt its regulation to the resolutions passed in the European Union and OECD agreements, particularly to comply with the provisions defined in the report relating to Action 5 of the OECD BEPS Action Plan which details the so-called “nexus approach” as a criterion to build a non-detrimental preferential intangible asset regime.

Specifically, the list of intangible assets the incomes of which are susceptible to tax reduction excludes reference to “plans, formulae, or know-how, in addition to rights over information relating to industrial, commercial, or scientific experiences” and includes “utility models, supplementary protection certificates for medicinal products and plant protection products, registered advanced software obtained as a result of R&D projects.”

The wording of Article 23.1 is as follows:

“Article 23. Tax reduction for incomes derived from intangible assets

  1. Positive incomes derived from the assignment of the right to use or exploit patents, utility models, supplementary protection certificates for medicinal products and plant protection products, designs, and models, or registered advanced software obtained as a result of R&D projects, shall be entitled to a taxable base reduction by the percentage obtained by multiplying by 60% the result of the following coefficient:

a) In the enumerator, expenses incurred by the assigning entity that are directly related to the creation of the asset, including expenses derived from subcontracting third parties that are not related to the company. These expenses will increase by 30%, without the numerator exceeding in any case the amount of the denominator.

b) In the denominator, expenses incurred by the assigning entity that are directly related to the creation of the asset, including expenses derived from subcontracting, and, where appropriate, the acquisition of the asset.

The preceding coefficient will in no case include financial expenses, fixed asset depreciation, or other expenses not directly related to the creation of the asset.

The reduction set forth in this section is also applicable to positive incomes derived from the transfer of intangible assets mentioned therein, where said transfer occurs between entities that are not linked to one another.

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