15 Mar THE REMUNERATION OF THE DIRECTORS OF THE CAPITAL COMPANIES AND THEIR FISCAL TREATMENT

Previously, the majority doctrine and almost all resolutions of the General Directorate of Registries and Notaries, mainly the Resolution of June 17, 2016, established that the remuneration of managers in their capacity as such or directors without executive functions it had to be included in the bylaws in accordance with article 217 of the Capital Companies Law approved by Royal Legislative Decree 1/2010, of July 2 (hereinafter LSC) and; on the other hand, the remuneration relative to executive directors or CEOs will be agreed by contract after their appointment by the Board, separately and without having any relation to the bylaws, in accordance with article 249.4 LSC.

However, the new ruling of the Supreme Court, Civil Chamber, No. 98/2018 of February 26, 2018, establishes that the remuneration for all directors, whether executive or not, must be provided for in the bylaws, being cumulative both precepts.

Until STS 98/2018, the prevailing interpretation allowed the management body not to be subject to the so-called “statutory reserve” of the remuneration of the directors or to the limits set by the General Shareholders’ Meeting, establishing a system that we could call “dual” in relation to the application either of article 217 LSC or of article 249 LSC and that is precisely the one that comes to reject the Supreme Court.

In conclusion, this cumulative thesis assumes that the remuneration rules established by article 217 LSC apply to all directors and, cumulatively, to the delegated directors are also applied those of article 249 LSC.

Regarding the fiscal impact in which this new thesis is translated, according to what expenses of the executive directors would be deductible for the purposes of the Corporation Tax, as for example would constitute a vehicle exclusively affected by the charge, but the only condition that existed today for such deduction is that the remuneration received was in accordance with the legislation in force for having bylaws coverage.

However, as a result of STS 98/2018 many companies will be forced to change their bylaws adapting their remuneration policy to this new position and until they carry out its modification, the deduction of said expenses will not proceed.

In Navarro Llima Abogados, we have a team of lawyers specialized in commercial law, willing to offer the corporate advice they need to be able to shield themselves from situations such as those discussed in this article.

Inés Usón González,

Lawyer