Withholding on account of the IS in the granting of guarantees

The DGT considers that if the provision of guarantees is made in the exercise of an economic activity, there is no obligation to withhold the account of the IS.

A public business entity, with legal personality and full capacity, has among its aims to seek funding to carry out the public credit policy of the General Administration of the Autonomous Community and the design and development of financing instruments in collaboration with the sector financial institutions and multilateral financial institutions of which Spain is a member for the benefit of the sectors of the productive economy.

Within the framework of these purposes, it has signed a collaboration agreement with the Official Credit Institute (ICO) under which it grants guarantees in favor of the companies benefiting from financing programs, receiving in exchange an annual risk commission.

It is considered if the perception of said commission is subject to withholding on account of the IS and, in its case, who is the one liable to withhold.

In this sense, the IS regulations establish the obligation to retain, among others, with respect to the income derived from the participation in equity of any type of entity, of the assignment to third parties of own capital and the remaining income included in the regulations IRPF on income from movable capital.

IRPF regulations distinguish four groups of income from movable capital: income obtained from the participation in the equity of any type of entity, income obtained from the transfer to third parties of own capital, returns from capitalization operations, insurance contracts of life or disability and of income derived from the taxation of capital and other income from movable capital.

According to the administrative interpretation, the benefits derived from the granting of an endorsement are considered to be included within the group other income from movable capital, but based on the fact that the provision of guarantees is not made in the exercise of an economic activity.

In the specific case, the statutes of the public entity include among its functions the granting of credits, loans, guarantees and other guarantees, in favor of those who make up the regional public sector, as well as regional private companies or with projects and investments in the region. Therefore, as the granting of guarantees to companies and regional projects is a provision of integrated services in the field of economic activity carried out by the public entity, the fees it obtains for the granting of said guarantees in favor of the beneficiary companies of the program of financing are not subject to withholding.