Deductibility of directors' remuneration

Deductibility of directors' remuneration

In accordance with the recent ruling of the Third Contentious-Administrative Chamber of the Supreme Court dated March 13, 2024, a positive precedent is established to be taken into account to be able to consider the remuneration received by company administrators as deductible even when The paid position does not appear in the statutes, an issue that always clashed with the systemic refusal by the Tax Agency, which considered these payments as donations or liberalities and, therefore, not deductible.

Indeed, the judicial resolution focuses on fundamentally refuting the cases in which the Public Treasury denied the deductibility of the remuneration paid to the administrators, taking advantage of the literal wording of the statutes, in which the position was provided for free. The Court's magistrates argue, contrary to what was stated by the Administration, that the gratuitousness of the position according to the statutes is a mere indication to be taken into account, and must be analyzed together with the rest of the evidence in the specific case in which we find ourselves. to be able to assess the condition of deductible expense or not of said remunerations.

The Chamber maintains that it is not possible to deny the deduction of an expense duly accounted for and correlated with the obtaining of income, such as the amounts paid as remuneration to the administrators, since they are foreign to the concept of liberality, as long as it is demonstrated that the provision of services is real and effective.

Furthermore, the fact of denying the deductibility of the amounts given to the directors of a company for the work carried out for the benefit of the same, represents unjust enrichment on the part of the Administration, so that the deduction of a expense with onerous cause and correlated with income, while the income received by administrators is taxed in personal income tax.

This ruling opens the door to regularizing in non-prescribed years the deductibility of those amounts that companies did not deduct at the time due to administrative criteria. In summary, the ruling consolidates the jurisprudential doctrine relating to the power to deduct the remuneration of directors, even when it is not provided for in the company's statutes, as long as it is demonstrated that they are onerous services that were actually provided.

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