Reforma tributaria: 20 mil empresas estarán afectas a nuevo impuesto a utilidades acumuladas en sociedades de inversión

One of the measures of the tax reform that has generated the most consultations in the market is the new interest rate to be applied to non-operating companies that have retained earnings and, therefore, whose owners postpone the payment of taxes on said profits.

Specifically, the reform proposes a interest rate of 1.8% that will be charged to defer personal taxes through investment companies or similar vehicles. Who will it apply to? Only to companies whose income comes from more than 50% of the so-called “passive income”. That is, dividends, real estate leases and interest. Of course, financial institutions will be freed from this rate.

According to data provided by the Ministry of Finance, based on information from the Internal Revenue Service (SII), some 20 thousand companies would be affected by the rate, representing 6.4% of the total. The 1.8% tax is paid annually and will begin to be applied in the business year 2025, but in 2024 the rate will be 1%.

With this, the Treasury expects to collect the equivalent of 0.56% of GDP (US$ 1,749 million at the current exchange rate) in the regime as of 2026.

What will be considered for the calculation

The text points to eight categories of income considered passive.

For example, dividends, withdrawals, distributions and any other form of distributioncoming from the control, possession or precarious holding of shares in other entities, whether national or foreign; income earned from entities controlled, incorporated, domiciled or resident in a territory or jurisdiction considered a tax haven, which qualify as passive income; and interests that come from money credit operations and the income that comes from the domain, possession or precarious holding of other debt instruments, bonds, debentures, derivative instruments. Of course, it will not be applicable to banks and financial institutions under the supervision of the Commission for the Financial Market (CMF).

In turn, it will apply to the income derived from the assignment of the use, enjoyment or exploitation of trademarks, patents, formulas, computer programs and other similar benefitswhether they consist of royalties or any other form of remuneration, but excluding income from research projects.

Likewise, the tax will be levied on capital gains or higher values ​​from the sale of goods or rights that generate income, including those that come from the sale or any type of transfer of crypto assets or any other digital means of exchange; as well as income from the lease or temporary transfer of real estate.

“Passive income will not be considered that which comes from the alienation of fixed assets that a company carries out within a commercial year, provided that its main activity does not consist of obtaining passive income; and has not been found subject to the tax established in this letter within the three previous business years”, explains the bill.

The magnifying glass of the market

For him partner of Loy Letelier Campora, Mauricio Loy, the main implication of the new tax is that it introduces, in a “bypassed” way, the wealth tax in a general way, since it involves affecting the main component of the wealth of all investment companies in Chile, with the highest rate that exists in the new wealth tax law (1.8%). “So, what this tax does is generalize the wealth tax for any investment company that has accumulated profits, regardless of whether it is above or below the US$5 million limit,” he warns.

José Alberto Guzmán, partner of Infante Valenzuela Molina Lawyers, believes that the new rate will have an impact on investment, since many of the affected companies “do eventually invest in operational projects, but determining said investment requires stages of study and evaluation of the projects, which takes time. And with this tax the profits to be reinvested will certainly be reduced”.

A similar thesis supports the partner of Fischer y Cía., Juan Cristóbal Ortega: “Investment companies provide a good reason for the profits of a business to remain in Chile and not be remitted abroad triggering taxes. This generates an incentive to develop new projects and businesses in Chile, which naturally means an economic benefit for the country. Therefore, we must be very careful that measures like these do not affect reinvestment in the country.”

The partner of Cabello Lawyers, Juan Pablo Cabello, adds that the tax will imply the need to review corporate structures, “simplifying” the network of companies and “probably” merging in many cases the investment companies with the operating ones. “If approved, it will be an incentive to subject to the new substitute tax that starts with a rate of 10% on accumulated profits, to avoid the application of the aforementioned 1.8%”, he explains.

While the partner of VLA Lawyers, Christian Aste, points out that this may end up affecting SMEs whose owners or related parties are investment companies: “There are also those companies that, having incomes of less than 75,000 UF, are subject to the general regime due to relationship regulations. It is not a good sign for investment, which, as we know, is preceded by savings”.