Las operaciones vinculadas: el Ajuste Secundario

In recent years, especially in the last decade, we have seen how the legislator was concerned and responsible for the transfer pricing regulation, which is no more than a logical response to the globalization prevailing in business relationships. The Spanish legislation is relatively veteran in applying the arm's length principle, assuming that transactions carried out between related parties must comply with such arm's length principle. Notwithstanding, it is not so skilled in regards to a qualification regulation, as it does in other legal sovereignties. The Law 36/2006 of 29th November, about the rules set for the prevention of tax evasion, first introduced in Positive Law a specific qualification regulation. Specifically, Articles 16.8 of the CITL (Corporate Income Tax Law) and its regulations in Article 21 bis of the CITR (Corporate Income Tax Regulation), which regulate the so-called secondary adjustment, the function of which is simply to provide a solution for the discrepancy seen between the accounting basis and the tax basis after having marked to market the operation, so that one part has a funds excess to the detriment of the other. Once agreed that the qualification adjustments do not solve the income excess that still has one of the related parties, and therefore assuming that it is necessary to provide a legal solution to this income excess, the truth is that the current regulation of the secondary adjustment suffers important and severe defects of legislative technique. This study deals with the detailed analysis of the effects that the application of the secondary adjustment mean for the related parties, as well as to other shareholders who were not involved in the operation, showing up situations not consistent at all with the recommendations of the OECD about this subject, such as the generation of double taxation situations or direct violations of the Commercial Law basic principles. Therefore, and after a Comparative Law research, the study proposes a legal solution involving an agile and quick refund of the funds excess.