As of 1 January 2014, the earlier disclosure system for overseas transactions made by residents shall be without effect (by repeal, among others, of rules instruments 6/2000, of 31 October and 3 /2006, of 28 July, and of rule 1(4), 2(2), 3(2) and tables 2A and 2B of the annex to the Rules Instrument 2/2001, of 18 July), pursuant to the Bank of Spain’s Rules Instrument 4/2012, of 25 April, on rules for disclosure by non-residents in Spain of economic transactions and financial asset and liability balances (hereinafter, the “Rules Instrument”), which came into force on 1 January 2013.
In turn, on 1 January 2014, the transitional regime imposed by the Rules Instrument, under which residents who were obliged to provide the information required under the previous system (mainly established in rules instrument 3/2006), must continue to provide and declare it, pursuant to said rules instruments, until 31 December 2013, and, in turn, must comply with the duties set out in the Rules Instrument.
The Rules Instrument establishes new disclosure duties for residents, through their direct declaration of certain information, instead of obtaining such information, as was the case with the previous system, through payment service providers.
Below we recall the main features of the new disclosure regime established by the Rules Instrument:
- Duty to disclose
The duty to disclose shall be incumbent on the natural and legal persons (public or private) resident in Spain who or that conduct transactions with non-residents or maintain overseas assets or liabilities.
For the purpose of the present Rules Instrument, acts, business and operations involving - or resulting in – overseas collections, payments and/or transfers, as well as changes in accounts or in debtor or creditor financial positions, shall be regarded as “transactions with non-residents”.
Payment service providers registered on the official records of the Bank of Spain, which are those set out in article 4 of the Payment Services Act 16/2009 of 13 November, are excluded from this duty.
- What information must they provide?
Transactions for their own account with non-residents, whatever their nature and regardless of how they are settled, i.e. whether settled by overseas transfers, crediting or debiting bank or inter-company accounts, compensations or cash payments.
Balances and changes in overseas assets or liabilities, whatever the form they take (bank or financial accounts, inter-company accounts, cash or securities deposits, shares in capital, debt instruments, derivatives, real estate, etc.).
- When and how often must they disclose?
Below follows a table summarising the frequency and time limits for disclosure of the aforementioned information, according to the value of overseas transactions during the year prior to that in which disclosure is required or to asset and liability balances at 31 December of the year prior to disclosure1.
Click here to view table.
Notwithstanding the above, there are some exceptions:
- Where the value of transactions or balances does not exceed 50 million euros (€ X ≤ 50 Million €), a summarised annual declaration may be presented, containing only the opening and closing balances of overseas assets and liabilities, the total value of collection operations and the total value of payment transactions in the declared period.
- The Bank of Spain may require those title holders whose declarations relevantly affect various headings of trade statistics or the PDE2 to declare with greater frequency than would apply pursuant to the provisions contained in the table. It may also require that the summarised annual declaration, to which point 1 above refers, is made without summarising, detailing the relevant transaction and balance items.
- Residents who have not reached the declaration thresholds under sub-rule 1 of this rule in the previous year, but surpass it in the current year, shall be required to submit the declarations with the appropriate frequency from the time the these thresholds are surpassed3.
- Disclosure procedure
The information must be electronically submitted to the Bank of Spain’s Department of Statistics in accordance with the formats, terms and requirements provided under the “technical applications” of this Rules Instrument.
Failure to comply with the described disclosure duties may entail, as was the case with the previous system, the imposition of penalties4. Below follows a summary of the types of violations and associated penalties:
Click here to view table.
Due to the described change of system, we recall the duty of residents in Spain to meet throughout the year 2013 the disclosure duties under the two systems (the earlier one, repealed on 31 December 2013, and the new one, which came into force on 1 January 2013) and, from January 2014, only under the new system. In turn, we recommend conducting a monthly review and a review on 31 December for each year the value of transactions for your own account and the balances and changes in overseas assets and liabilities, to verify whether or not there is a duty to disclose and, if so, the frequency with which it must be performed.