The Directorate General of Taxes (DGT) concluded that the accelerated depreciation regime can be used in the regime for small businesses, but only for goodwill and for intangible assets whose useful life does not exist. can be estimated reliably.
The special regime for small businesses allows a number of tax incentives. Among other things, article 103.5 of the law on corporation tax (LIS) provides that the intangible assets referred to in article 13.3 of the law (acquired when the conditions for claiming this special regime are met) can be depreciated at 150% of the amount determined under this article.
This article 13.3 is no longer valid, however, following the modifications introduced in the law on corporation tax (LIS) by law 22/2015 of July 20, 2015 which gave a new accounting treatment to intangible assets. Before the entry into force of Law 22/2015, the accounting and tax treatment of intangible assets was as follows:
- Intangible assets with finite useful lives were amortized for accounting purposes over their useful life. From a tax point of view, any depreciation expense thus recorded was tax deductible (article 12.2 LIS).
- Intangible assets with indefinite useful lives (including goodwill) have not been amortized for accounting purposes. Under the then current wording of section 13.3 of the DSL, however, 5% of their cost could be deducted each year without having to be recognized for accounting purposes.
In accordance with Law 22/2015, all intangible assets are considered to have a useful life, although in some cases they cannot be reliably estimated. Following this amendment, the law on corporation tax (article 12.2) provides that intangible assets are depreciated over their useful life; and if their useful life cannot be reliably estimated, their accounting depreciation charge is deductible within the annual limit of 5% of their cost. Goodwill can also be amortized within this same limit.
In other words, the system of amortization of intangible fixed assets is now contained in article 12.2, whereas before law 22/2005 the system of article 12.2 had to be used for intangible fixed assets with a useful life. defined and that of article 13.3 for intangible assets with an indefinite useful life. useful life, including goodwill. Now that section 12 is used for both plans, the provision of section 103.5 relating to accelerated depreciation in the small company plan has lapsed.
In view of this modification of the law, the DGT (in its resolution V3057-19 of October 30, 2019) concluded that accelerated depreciation can be used in the regime of small companies, but only for business assets and for intangible assets whose useful lives cannot be reliably estimated.
This interpretation surprisingly means that a more unfavorable regime has been adopted for intangible assets whose useful life can be reliably estimated in relation to other intangible assets, for which the regime for small companies allows also accelerated depreciation (in section 103.1 LIS).