The right to one’s own image is regulated by Spanish law. The right to use one’s own image is considered a fundamental right, understood as “irrenunciable, inalienable and imprescriptible.” Read this article to learn how profits earned from one’s own image are taxed.

Is profit from one’s own image taxed as movable capital or economic activity?

Art. 92 LIRPF allows for the imputation of taxes on income that elite athletes receive if they transfer their image rights to third parties. The LIRPF classifies the income obtained from the transfer of image rights as income from movable capital, unless it takes place within the scope of an economic activity. It would be classified as economic activity if the elite athlete, acting on their own behalf, hires goods and/or services to earn income from their image.  Art. 27 of the LIRPF considers income from economic activities,

“those that, coming from personal work and capital jointly, or from only one of these factors, suppose on the part of the taxpayer the ordering on his own account of means of production and human resources or of one of both, with the purpose of intervening in the production or distribution of goods or services. In particular, the exercise of liberal, artistic and sporting professions are considered”.

Thus, if the holder of the image exploits their image, of their own account and at their own risk, the income they obtain will not be classified as income from work or as income from movable capital, but will be taxed as income from economic activities. This imputation is foremost for athletes who compete individually. These are athletes not subject to an employment relationship with a club or a sports corporation, but who act as professionals and transfer their image rights in the scope of a tournament, activity, event or spectacle. This also pertains to images that are used to promote commercial products or any arrangement where the athlete’s image is exploited commercially, without a third party intervening.

It is important to point out that the athlete must act as an entrepreneur or professional in order to be able to impute the profits obtained through the transfer of image rights as income from economic activities. They must:

  • Obtain, on their own account, the material and human resources to earn the income
  • Prove the existence of a premises exclusively destined to carry out the management of the activity
  • Demonstrate that at least one full-time employee with a work contract is used for this activity.

In short, activity beyond the mere transfer of the image is necessary to classify the income as an economic activity. Thus an athlete who maintains an employment relationship will be able to manage their image rights as income derived from economic activities insofar as it implies the deployment of their own resources. The advantage is that they can deduct the relevant expenses.

Difference in taxation rates

Income gained from economic activity (RAE) is taxed between 19% and 45%. Income from assets (RCM) is taxed between 19% and 23%. As mentioned above, the advantage of having income from one’s own image classified as economic activity is that expenses can be deducted.

Anti-abuse clause

It is important to note that this legislation includes an anti-abuse clause. This clause counteracts the attempt to avoid taxation in Spain of the income ordinarily received by athletes for the transfer of their image rights. It seeks to prevent, through the existence of a tax transparency clause, the delocalization of income in the IRPF through the introduction of corporations or screens for the collection of income received by elite athletes on the occasion of the exploitation of those rights.

Therefore, this anti-abuse clause may be applied provided that the following requirements are met:

  • That the athlete has transferred the right to the exploitation of his/her image to another person or legal entity, regardless of whether or not he/she is resident in Spain.
  • That the athlete has an employment relationship with a person or entity, generally a sports club or SAD, taxed as income from work.
  • That the legal entity with which the athlete has an employment relationship has obtained, through concerted actions with persons or entities, the right to the exploitation of the rights of image of the same.
  • That the consideration paid to the person or entity interposed for the assignment of the image rights exceeds 15% of the sum of the work income together with the labor retributions paid by the athlete assigning the image rights.

 

Conclusion

In short, the income attained from exploiting one’s own image is classified as economic activity when the holder of the image right does not make it profitable by transferring it to a third party, which would allow it to be taxed as a capital gain. It is classified as economic activity when the owner manages the economic exploitation of their image right, at their own risk, using the necessary factors of production to maximize the profitability of this exploitation.

Do you want to learn more about the rights to your image in Spain, or how to minimize the taxes you pay on profits obtained from your own image? If so, CONTACT US TODAY to learn more.