Beyond registration obligations and possible income tax liability, the question arises of taxation in Value Added Tax or Property Transfer Tax and Stamp Duty. To answer these questions, we must refer to Article 338 of Law 6/2023 on Securities Markets and Investment Services.
This article establishes that, as a general rule, the transfer of securities—whether or not they are admitted to trading on an official secondary market—is exempt from VAT and TPO/AJD. This measure seeks to promote the liquidity and efficiency of financial markets, preventing securities trading from being hampered by tax burdens that could discourage investment.
However, the rule introduces an important exception: when securities not admitted to trading on an official secondary market are transferred and the transaction is used to avoid taxation on real estate, the transfer will not be exempt. In this case, the transaction will be taxed as if it were a transfer of real estate for consideration. In this way, the legislator aims to prevent tax fraud, ensuring that securities transactions do not become a mechanism for avoiding the payment of taxes that would correspond to the purchase and sale of real estate.
Article 338 replaces the former Article 314 of the Consolidated Text of the Securities Market Law, maintaining virtually the same wording. It establishes several cases in which, unless proven otherwise, it is understood that the intention is to evade tax payments, which does not imply that there are no other cases not covered by the legislation.
If you think you may find yourself in this situation and have questions about how you will be taxed, please do not hesitate to contact MDG Advisors, and we will help you resolve all your questions.