After the barrage of news these days in the press and the media in general, transfer of registered office by large companies and in particular The Caixa y Banc Sabadell, it seems appropriate to indicate how the current regulatory situation remains, as well as the particularities of the change of registered office and the fiscal domicile of the company.
With the Royal Decree-Law approved last 7 day of October of 2017 by the Government, the procedure for transferring the registered office of a company has been simplified even a little more, recognizing this power in almost all of the cases to the body of administration of the company, without specifying the agreement of the Board of Members.
If already in this Article June of the 2015, we commented that with a general nature and unless otherwise provided by the bylaws, the administrative body of the company had the competence to arrange the transfer of the registered office within the national territory, with the current reform being extended the powers of the administrative body, in such a way that in order for the administrative body to be unable to carry out the transfer, an express provision is required in the bylaws as the administrative body does not have the authority to transfer the domicile and that agreement be adopted after the 7 October day of 2017.
In order to transfer the registered office and that it is effective for all purposes, in almost all cases, the agreement of the administrative body, its elevation to the public in writing and its registration in the Mercantile Registry of the Province of the previous of the new registered office.
In any case, the partners of the Company will have the power to restrict this power of the administrative body, but for this purpose they must adopt an express agreement in the Board of Members and register that agreement in the corresponding Mercantile Register.
And as for the fiscal domicile ...What is the tax domicile of an entity?
Article 48 of the Law 58 / 2003, General Tax defines the fiscal domicile as "the location of the taxpayer's location in its relations with the tax administration."
Rules for determining the location of the tax domicile:
The tax domicile will coincide with the registered office, provided that in the same the entity has centralized the administrative management and the direction of its businesses.
If you do not apply the first rule, you must be at the place where that management and address lies.
If it is not possible to determine according to previous criteria, the one with the highest value of the fixed assets will prevail.
The modification of the fiscal domicile does not require any modification of the Articles of Association, nor the holding of any General Meeting, so it is sufficient to simply submit a census statement online (model 036) communicating this circumstance, without the necessity of providing any other type of documentation.
About the authors:
Marcos Jiménez de Parga
DiG lawyer Lawyers