Tratamiento de las retribuciones de los administradores sociales en el Impuesto sobre Sociedades

(Comentario a propósito de dos sentencias de la Sala de lo Contencioso-administrativo, Sección segunda, del Tribunal Supremo, de 13 de noviembre de 2008)

Abstract

 According to the two referred resolutions of the Supreme Court, the The following lines analize two of the last resolutions of the Supreme Court on fees payable to the members of board of directors in the framework of the Corporate Income Tax. According to the Spanish corporate legislation, the articles of association of a company (by-laws) must include the fees payable to the members of its board of directors. According to the two referred resolutions of the Supreme Court, the articles of association must comply with certain formalities, since otherwise the fees will not be considered as deductible expenses in the company tax. The Supreme Court resolutions establish that the fees plus salaries granted to a chief executive officer (CEO) in exchange for his services (i) as member of the board and at the same time (ii) as employee, cannot be deducted in the company tax due to the fact that position of the CEO as a member of the board of the company takes over any labour his relationship as employee. The Supreme Court judgment is applicable under the rule of the Corporate Income Tax Law 61/1978 no longer in force.