La deducción de los gastos financieros en el impuesto sobre sociedades: un análisis de la normativa anti elusión española

Abstract

This thesis analyze the problem related to the limitation of the deductibility of interest expense in the corporate income tax in Spain. The problem is analyzed, both economically and legally, in order to draw some conclusions that allow us to respond to two main issues. Firstly, to determine if the regulatory system to fight the erosion of the tax base through the use of financial expenses implemented in our country (established by the fixed ratio rule and others specific characteristics) seeks the neutrality between self-financing and borrowings or, on the contrary, its purpose is strictly to increase tax collection; and secondly, if this rule encourages the companies to seek balanced financial structures between the two types of financial sources. Thirdly, we wonder if the rules in the common territory are consistent with the recommendations of the OECD and we compare it with the existing rules in the Basque Provinces and in certain countries which apply the limitations established for the deductibility of interest expense. The structure of the thesis is as follows: In Chapter 1, we examine in detail the rules that limit the deductibility of the interest�s expenses existing in common territory before and after the enactment of R.D. 12/2012. In Chapter 2, as the provincial legislation of the corporate income tax is different, we analyze the rules existing in the three provinces of the Basque Country, as well as those applicable in Navarra. In Chapter 3, we attempt to clarify the concepts of equity and debt instruments in accordance with the regulations and the interpretation thereof contained in the various administrative and judicial pronouncements. In Chapter 4 is devoted to the review of the studies and the results obtained during the development of Action 4 of the BEPS project undertaken within the OECD. In Chapter 5, we study the general and specific rules about the limitation of the deductibility of financial expenses implemented in forty different countries, including those belonging to the European Union, the European Economic Area, The BRICS and other OECD countries. In Chapter 6, a consistent empirical exercise is done. First, we apply the fixed coefficient rule to a large sample of firms affected by limitations on the deductibility of interest expenses; second, we revise the evolution of financial structures before and after the entry into force of regulation of the financial structures of the companies subject to it; and, finally, we compare the differential effect of fixed coefficient rule currently applicable in the common territory and the thin capitalization rule still in force in the country Basque. The thesis concludes with the Chapter 7 that summarizes the conclusions. Moreover, the references are collected and attached several annexes where some aspects of the investigation are detailed