As is already well known (although perhaps not yet sufficiently), at least in the financial sector, the regulation known as MiFID II aims to reinforce, in different areas, the current European regulation on securities markets, being one of its main objectives strengthen investor protection.
In this sense, said regulations expressly establish that member states must guarantee that entities that provide investment services act with transparency and in accordance with the best interests of their clients.
Thus, entities that provide advisory services are required to inform investors of the cost of the advice, clearly state what their advice is based on, in particular what type of products they handle in their personalized recommendations to clients, if their advice in Investment matters are INDEPENDENT in nature and if they offer a periodic evaluation of the suitability of the financial instruments they recommend to their clients. When the ADVICE is provided on an INDEPENDENT basis, it will be necessary to make an evaluation of a sufficient number of products from different suppliers.
Deepening the objective of strengthening the protection of investors and increasing the transparency of the services they receive, the aforementioned regulation also restricts the possibility that entities that provide independent advisory and portfolio management services accept and retain incentives from investment providers. products. Said incentives must be returned in full to the client, who must be timely and periodically informed about it, together with all the additional costs and expenses associated with the investment and auxiliary services received.
Well, in this regulatory context of imminent implementation in our legal system (its entry into force cannot be delayed beyond January 3, 2018), in which INDEPENDENT advice is clearly configured as the only one capable of complying with the final objectives pursued by the regulator in order to provide investors with maximum protection and transparency, we find that current taxation can pose a serious obstacle to the achievement of such objectives, particularly for investors who are natural persons.
Indeed, the current Personal Income Tax Law, for the purpose of calculating the return on net movable capital (from interest, dividends, fixed income, savings insurance, etc.), only considers as deductible the administration and deposit of negotiable securities expenses. , not being the amounts that suppose the consideration of a discretionary and individualized management of investment portfolios. For its part, in order to calculate the amount of capital gains or losses (derived, with regard to financial investment, from the transfer of shares, investment funds and ETFs, mainly), it is considered that it will be part of the acquisition value the expenses and taxes inherent to the acquisition (excluding interest).
On the other hand, for VAT purposes, current regulations oblige 21% to be passed on for this concept on the commissions charged to clients for both discretionary management and advice.
Therefore, we find "a priori" that an individual investor who wants to hire the INDEPENDENT advisory service (or discretionary management) may be penalized from a tax point of view for having to pay an explicit commission (there is no other formula in accordance with the MiFID II regulations), in addition to the corresponding VAT, and that may not be deducted for the purpose of calculating your net taxable income in personal income tax. In fact, this adverse tax treatment is precisely one of the main arguments that are used (and will be used) by those who prefer to opt for a model of advice that is NOT independent.
Consequently, given the current circumstances, it seems appropriate (and above all convenient) a review by the legislator of the regulations in force so that both the advisory commission (whether independent or not) and that of discretionary portfolio management, so that i) the maintenance of certain questionable practices in the sector is not encouraged (even indirectly), and ii) taxation is a neutral factor that does not interfere in the effective achievement of the objectives pursued with the referred MiFID II regulation.
Fernando H. Estevez Olleros, Secretary General, Diaphanum securities company