In the latest installment of the Declarando Legal Observatory, the keys to the recent rulings of the Supreme Court are analyzed (rulings issued on July 6 and 11, 2022), which recognize the right of companies to deduct the salary of self-employed companies as an expensealthough this aspect has not been reflected in the company’s bylaws.
“Until now, the deduction in the company tax of the payroll expense of the partner/worker was being denied, and what the Supreme Court has now done has been to resolve the appeal against the sentences that denied it. Furthermore, the sentence requires the Treasury to return the amounts that were entered for the liquidation of the Corporation Tax, since it considers that it is appropriate to apply the deduction “explains Marta Zaragozá, CEO of Declarando and specialist in tax law.
For the Supreme Court, what is relevant in this matter is that the provision of the service exists (the work that the self-employed company does), the remuneration (the salary that they receive) and the correlation with the business activity.
Until now, the Treasury considered that if it was not expressly detailed in the company bylaws that the partner (corporate self-employed) He was a worker and received a salary, there was no employment relationship. According to this criterion, what existed was a commercial relationship and, therefore, the partner’s salary could not be deducted as an expense. “This expenditure was considered by the Treasury as a liberality; that is, a donation”adds Marta Zaragozá.
The sentence affects the working partners, who are registered as self-employed in Social Security, but collect from the company through a payroll. “In short, although it has not been stated in the company bylaws that the self-employed company receives a salary, for all purposes it will be recorded as such.
