The Directorate General of Taxes (DGT) has recently ruled that providing cell phones to employees for professional use does not constitute remuneration in kind for personal income tax purposes.
The consideration as remuneration in kind in personal income tax of the transfer by companies of certain goods to their employees can generate doubts and controversies with the tax authorities.
In particular, due to the pandemic situation and the generalization of teleworking, many companies have wondered whether it is appropriate to charge a remuneration in kind, subject to income tax, for the equipment (cell phones, laptops, etc.) that they give to employees free of charge to carry out their work.
In this regard, it should be recalled that Article 42 of the Personal Income Tax Law classifies as remuneration in kind the use, consumption or obtaining, for private purposes, of goods, rights or services, free of charge or at a price lower than the normal market price.
In general terms and before analyzing the specific case, the DGT reminds that there is no remuneration in kind when the company provides the employee with the machines, tools and implements owned or owned by the companies necessary for him to perform his work. The non-existence of work performance must be affirmed not only in the case that the provision of the aforementioned means to the employee takes place in the company’s premises, but also when the employee provides his services outside these premises, as occurs when he works at his own home in the case of teleworking, or at the home of the company’s clients.
On the other hand, and also in general terms, the use, consumption or obtaining of the aforementioned means for the employee’s private purposes may constitute employment income in kind.
Criteria of the DGT
Well, recently the DGT in the resolution of its binding consultation CV v0150-22, dated January 31, 2022, analyzes the case of a company that grants its employees the use of a cell phone and its accessories (charger, cable, batteries, multi-SIM cards, case, etc.), and other elements of similar and analogous characteristics, property of the company, for the performance of their work. The company’s code of conduct prohibits the private use of these work instruments, a prohibition that is included in general in the policy for the professional use of company telephones and, on an individual basis, in the contractual clauses of the employment contracts.
The DGT recognizes that, in general terms, it should be understood that “there is no remuneration in kind when the company provides the employee with the machines, tools and implements necessary for him/her to carry out his/her work“. The non-existence of work performance must be predicated not only when the provision takes place on the company’s premises but also when it takes place outside the company’s premises (either at the customers’ homes or, for example, in teleworking situations).
The DGT also states that, in general terms, such transfer of machines, tools and implements may constitute work income in kind in the case of use, consumption or procurement for private purposes.
However, in the specific case raised by the consulting entity, the DGT concludes that there is no remuneration in kind:
– the nature of the devices provided (mobiles)
– their unquestionable connection with work and
– the circumstances surrounding their use as defined in the professional use policy and in the employment contracts
This DGT consultation involves the establishment of a relevant criterion on a matter that affects a large number of companies and which presents a high level of conflict in management and inspection procedures. It is advisable to review the policy followed by companies in this respect.
For more information, please contact Asesoría laboral.
