SPAIN - GOLDEN VISA AND OTHER INVESTMENT INCENTIVES

This report shall describe the key aspects of the different Investment Incentives Programs established by Law 14/2013, of September 27, on Entrepreneurs and their international activities (Ley de Emprendedores y de su Internacionalización), which include the so called Golden Visa pursuant to the Real Estate Investment Regime.

IN GENERAL

In general, the Law is addressed to (i) investors, (ii) entrepreneurs, (iii) highly qualified professionals; (iv) researchers and workers who make intra-company movements, as well as spouses and children under the age of 18.

The law provides for a faster processing of the necessary permits and documents, establishing a general maximum resolution period of 10 days for all visas included in the law. However, the possibility that such deadlines are met is contingent upon a number of factors such as the efficiency of the administration concerned, the region where the investment takes place and others

The residence visas issued under this Law are sufficient to reside in Spain for one year without the need to apply for the usual Foreigner's Identity Card. The renewal of residence permits may be carried out even if the beneficiary has been absent from Spain for more than six months per year in the case of residence visas and authorizations for foreign investors or foreign workers of companies that carry out activities abroad but have their base of operations in Spain.

This is linked to the possibility of establishing what we call “Spanish Operating Holding Companies”, devised to attract businesses on the basis of granting benefits to those Spanish companies owning an international structure. We can provide more information on this particular aspect upon request.

The general Personal requirements to apply for the Visas (with the exceptions stemming from each specific regime – i.e. Real Estate) are as follows:

*       Not to be irregularly on Spanish soil at the time of filing the applications.

*       Be of at least 18 years of age.

*       Have no criminal record in Spain and in the countries where they have resided in the last 5 years, for crimes foreseen by the Spanish legal system.

*       Not being subject to repatriation to their countries of origin in any of the countries with with which Spain has signed an agreement to this effect.

*       To have taken a private health insurance with an Insurance Company authorized to operate in Spain.

*       Have sufficient economic resources for the applicant(s) and their family members during their period of residence in Spain (currently, 2,130€ per month for the interested party and 532€ for each dependent family member).

*       Pay the visa fee.

It is important to note that the possibility of applying for a residence visa includes also (i) the spouse and children under 18 years of age, or (ii) relatives (grown ups) who are not capable of providing for their own needs due to their state of health, provided they join or accompany the applicants; consequently, they may jointly (and simultaneously or successively) apply for a family residence visa, subject to proof of compliance with the requirements set out above.

The presence of the visa applicant is not required, as they may apply for and collect the residence visa through a duly accredited representative. Biometric data collection is not required.

The specific cases of residence visas referred to in this Law are as follows:

VISAS FOR ENTREPRENEURIAL INVESTMENTS

In order to benefit from this kind of business Visas, the applicants must present a business project to be developed in Spain that is considered and recognized by the authorities as being of general interest, for which compliance with at least one of the following three conditions will be evaluated:

 *   Creation of new jobs. Paramount.

*   Carrying out an investment with a relevant socio-economic impact in the geographical area in which the activity is to be carried out.

*    Mean a relevant contribution to scientific and/or technological innovation.

The authorities will also review

(a) the applicant's professional profile, training and professional experience and involvement in the project. If there are several partners, the participation of each of them will be evaluated individually, even in the case of those who do not apply for a visa or authorization and those who do not require it (i.e. other EU nationals).

(b) the contents of the business plan, mentioning at least the following elements:

b.1.           Description of the project: business activity to be developed, starting date, location, expected legal form of the company, potential economic impact of the investment, description of the number of jobs estimated to be created and their functions and qualifications, expected promotion activities and sales strategy.

b.2.           Description of the relevant product or service: the description shall be detailed and must include innovative aspects.

b.3.           Market analysis: market assessment and expected evolution, description of potential competitors, assessment of potential consumers and analysis of supply and demand.

b.4.           Financing: investment required, sources of financing and financial plan.

c) Forecasted added value for the Spanish economy, which must include innovation or investment opportunities.

This kind of investor residence visa may be obtained in the name of a qualified representative, appointed by the investor, for the management of a project of general interest provided that the project fulfils one of the conditions listed above.

It shall also be understood that the foreign national applying for the Visa has made a  ”significant capital investment” also when (i) the investment is made by a legal entity, domiciled in a territory that is not considered a Tax Haven under Spanish law, and (ii) the foreign national has, directly or indirectly, a majority of his voting rights, involving the authority to appoint or dismiss the majority of the members of his administrative body.

If the investment is made by a married couple acting under the “joint assets” regime (or similar) and the amount invested does not amount to at least double the thresholds provided for in Article 63 of the Law[1] it shall be deemed to have been made by one of the spouses and the other spouse may apply for a residence visa as a family member under the terms set out in Article 62.4. of the Law.

The regime is completed with other important benefits, such as the application of a different specific fiscal incentives in the Personal Income Tax (IRPF in Spanish) rates for the investment and/or financing of new companies, foreseeing deductions of up to 100,000 euros and of up to 10% in the corporate that are reinvested in the in the economic activity.

GOLDEN VISA FOR INVESTMENTS IN REAL ESTATE

The main elements to consider when assessing this kind of investment are as follows:

• The investment can include multiple properties that can be subsequently rented out.
• The Investment must be made in full, without financing regarding the first 500.000,00€. Amounts in excess of the minimum requirement can be subject to financing (i.e. mortgages). I understand that this requirement refers exclusively to financing reflected in the public deed of purchase or other mortgage deed, but would not require providing information on any possible foreign financing that would not show up in the Spanish title documents.
• Considering the additional costs (fiscal charges as well as legal, notarial and registration fees), the total amount can increase the total required investment by an estimated minimum ten per cent (10%)
• Registration of the property may take between 15 and 30 days, depending upon the location of the property and the Real Estate Register involved.
• Investors must first buy the property and then apply for the residency permit.

While the foreign investor may see a risk here, please note that this is a legal program, not subject in this case to administrative criteria like in the purely entrepreneurial cases. Therefore, applications for residency would only be denied in extreme cases. (i.e., the purchaser having criminal records in its country of origin – this may be asked as a part of the residence process - or being involved in money laundering activities disclosed during the application process.

• Property can be owned through a company provided the applicant proves that he/she controls the company.
• The acquisition would not entitle the purchaser to health care under the National Health Care System. The applicant must prove that it has taken a private health insurance.
• The amounts invested must be freezed for at least 5 years; that is, the time period required to apply for a permanent residence permit. However, we consider that the investor may apply for permit to sell and buy the properties during this period, so long as the minimum legal investment threshold is maintained.
• The Golden Visa allows all holders to work in the entire Spanish territory.
• There is no obligation to spend a minimum amount of time in Spain, so investors can remain tax residents outside of Spain, while benefiting from Spanish residency and the freedom of traveling to other Schengen countries for 90 out of 180 days.
• The resolution of the application for Residency takes from 10 to 30 working days depending on the case.

COSTS OF ACQUISITION AND MAINTENANCE

The above estimated costs over the investment required could be split as follows:

IF A NEWLY BUILT HOUSE/PROPERTY

• If the house is purchased from a constructor or developer, up to a maximum of ten per cent 10% VAT (Impuesto al Valor Añadido). This figure may increase up to 21% in the case of business premises.
• Some 1,5% IAJD – Documented Legal Transactions Tax (Impuesto Actos Juridicos Documentados).
• Land Register Fees: Registration of the property varies according to the property price and location: between 500-800€
• Notarial fees: Between 450-750€, depending on the property deed price, as the fees are fixed according to a sliding scale.

IF A SECOND HAND PROPERTY

Similar to a new property, except that the transaction would not be subject to VAT but to the so called Net Worth Transfers Tax (Impuesto de Transmisiones Patrimoniales), at a rate varying between the different Autonomous Regions where the property may be located. In general, some estimated 7%

MAINTAINING THE PROPERTY

Urban Properties are subject to the payment of the Annual Property tax (Impuesto de Bienes Inmuebles), which is due to the City Hall (Ayuntamiento) based on the cadastral value of the property. This value may vary depending upon whether the cadastral values have been updated recently or not. It can be estimated at 1/1,5% of the Cadastrial Value.

In addition, Condominiums are subject to the payment of monthly Community Dues, which vary in accordance with aspects such as the nature of the property, the number of owners in the condominium, the services provided (part time or 24 hours janitor, pool, central heating services) etc.

The law also includes privileged VISA regimes for highly qualified individuals (both from a professional, technical or research point of view), individuals being transferred by their foreign companies to work in Spain and others that we do not consider relevant to this initial report but that we could describe in more detail upon request///