When starting a business, you have different options and starting points: from starting from scratch and creating the whole environment and business without any base, until receiving a business in transfer, option that we will analyze today.
The transfer of a business occurs when, an entrepreneur who is exploiting a business in rent decides to cede the contract of rent of said premises to a third party.
What legal formulas do I have to make a transfer?
In order to carry out a business transfer, different legal strategies can be established, depending on the situation and characteristics of the business, participants and, above all, the intention of collaborating with the owner of the premises, who, although not having to give consent, can raise Lease rent up to 20%.
This formula, which is the essence of a transfer in the purity of the term, implies that the new entrepreneur subrogates himself in the position of the previous tenant , assuming the lease of the business as his own, with all his obligations and rights.
For this option to be feasible, although as we say it is not necessary to have the lessor’s authorization, it is necessary to inform you, since you have the right to raise the rent up to 20%. For this reason, and because it is best to start the landlord-tenant relationship in good ways, my recommendation is that instead of notifying you of the assignment by burofax, and without prejudice to doing so later, we will try to talk to the landlord, Situation and negotiate with him to avoid the increase of the rent as well as any other aspect of relevance for us.
It must be taken into account, since it is usually relatively frequent, that this right to assign the lease without the need for authorization of the landlord is waivable, so we must review the lease well and check that we have not Renounced to it and, consequently, we are prevented from giving up the contract freely.
2) Buy the leasing company
Another option, which can prevent us rising income as the contract holder remains the same, and do not even need obligation legal to notify the owner of the premises of the assignment is that, in the event that the contract is signed With a legal person (it is not valid when signed in the name of a self-employed person ), instead of changing the ownership of the contract, we change the ownership of the legal person.
The great advantage of this, as we said, is that you avoid name changes in the lease and that the landlord can raise the rent. On the other hand, and depending on the company, it may not be interesting to opt for this route, since when acquiring the company we acquire it with all its consequences: if within 3 months an inspection of the Tax Agency occurs and they discover something irregular, You can excuse yourself claiming that it was not yours before, society responds independently of the change of owner.
3) Transfer a business that is in your own premises
In this case, there is no assignment of the lease of the premises, since it did not previously exist, but what is done is a new lease , either by the premises or by the business as a whole, depending on What is appropriate, will be used by the new tenant, or be more interesting.
How do you tax the transfer of a business?
The taxation of the transfer of a business has different aspects and interveners and depending on the position in which we are and what element derives the income that is perceived will be taxed in one way or another.
A) Amount satisfied between the previous employer and the new one for the transfer of the activity
In the case of a purely business transfer, that is, the delivery of a person, physical or legal, to another of the business as a whole: materials, customers, employees, activity, etc. this is an operation not subject to VAT, but is subject to tax Property Transfer (ITP) but free, so it must be issued the invoice VAT and need not pay the tax Property Transfer (ITP) to be exempt , Although it does comply with the formal obligations imposed by it.
B) Rent perceived by the owner of the premises
The rent received by the owner of the premises for allowing the transfer of the business or as consideration for facilitating it, will be treated as the income usually levied by the lease , ie with VAT and withholdings.
C) Income received by the entrepreneur who gives up the business
The entrepreneur who transfers or transfers the business to a third party, must tax the amount received in his declaration of benefits, either in the declaration of income in the case of being a natural person or in the corporation tax for the case Of legal persons.
In the case of the declaration in the IRPF, we must emphasize that the same must be included in the equity gains section, and not in the economic activities section.