RSUs in Spain. In Spain an RSU is not a legal category: it is a contractual promise to which rules written for something else are applied. The characterisation comes out of your plan document, not out of the name of the instrument, and that is where two colleagues with the same grant end up with two different returns.
Valentina Ortega is Venezuelan, has lived in Madrid since 2019 and is the first engineer at a Valencia start-up that develops hospital management software. The company is registered in the Registro Mercantil, the Spanish companies register, as an emerging company under Law 28/2022. In 2023 she was granted options over 3,000 shares at an exercise price of 5 €. In 2026 she exercises them. In the last capital increase of 2025, an independent fund subscribed for shares at 30 € each. Valentina has heard that for Spanish start-ups "there is a special regime", and wants to know what she has to pay now and what later.
One precondition: the company must be an emerging company
The special tax regime does not apply to every young company or every start-up based in Spain. It applies to emerging companies as defined in article 3 of Law 28/2022, whose status must be recorded in the companies register after an assessment by ENISA, the Spanish public body that evaluates innovative projects. The law requires the company to meet all these requirements at the same time:
| Requirement | What Law 28/2022 demands |
|---|---|
| Age | No more than five years since its incorporation was registered, or seven in biotechnology, energy, industry and other sectors to be determined |
| Origin | Not arising from a merger, division or conversion of non-emerging companies |
| Dividends | Not distributing, and not having distributed, dividends |
| Listing | Not listed on a regulated market |
| Seat | Registered office, company domicile or permanent establishment in Spain |
| Workforce | 60 % of the workforce on an employment contract in Spain |
| Project | Innovative venture with a scalable business model, assessed by ENISA |
In addition, the company loses the benefits if its annual turnover exceeds ten million euros, if it is acquired by a company that is not an emerging company, or once the five or seven years are up. If it belongs to a group, the group or each company must meet the requirements.
The requirements almost nobody meets
In practice, many start-ups that present themselves as Spanish do not fall within the regime. The most frequent reasons are three. First: they have not applied to ENISA for certification and do not have the registration, which is what proves the status. Second: they are structured as a US parent with a Spanish subsidiary, so the options are granted by the parent, which is not a Spanish emerging company. Third: the team is spread over several countries and less than 60 % of the workforce has an employment contract in Spain.
For options, the law adds an important rule: the emerging company requirements must be met at the time the option is granted, not when it is exercised. If Valentina's start-up was an emerging company in 2023, even if by 2026 it has passed ten million in turnover, the exercise may come under the regime.
Three special tax features
An exemption of up to 50,000 € a year. For emerging companies, article 42.3.f) of the Spanish Income Tax Act raises the general 12,000 € exemption for deliveries of shares to employees. Nor does it require the offer to be made on the same terms to the whole workforce: it is enough for it to form part of the company's general remuneration policy and to contribute to employee participation. The requirements of article 43 of the Income Tax Regulation remain: a holding of no more than 5 % together with close relatives and keeping the shares for at least three years.
A special valuation. Article 43.1 of the Act values the shares delivered at the price paid by an independent third party in the last capital increase in the year before the delivery. If there was no capital increase, the market value at the time of delivery is used.
Deferred timing. Article 14.2.m) allows the non-exempt part not to be allocated to the year of delivery, but to the first year in which one of these events occurs: a listing on a stock exchange or a multilateral trading facility, or the shares leaving the employee's estate. If none happens within ten years, it is allocated to the year in which that period ends.
Valentina's figures
- Reference value: 30 € per share, the price of the 2025 capital increase subscribed by an independent third party.
- Price paid: 5 €.
- Advantage per share: 25 €.
- Total advantage: 3,000 × 25 = 75,000 €.
- Exempt part: 50,000 €.
- Non-exempt part: 25,000 €, which is not allocated to 2026 but to when the company lists, when Valentina sells the shares or, at the latest, after ten years.
Without the regime, the 75,000 € would have been employment income for 2026, and the value applied would have been the market value on the day of exercise, which might be different.
If Valentina sells within three years, she loses the exemption and must file a supplementary return with late-payment interest. The sale is also one of the events that trigger allocation of the deferred part. If she ceases to be resident, article 14.3 requires the pending income to be included in her last return as a resident, with a different option if she moves to another European Union State. And if Hacienda, as the Spanish tax office is commonly called, later finds that the company did not meet the requirements, the whole regime may fall. We cannot guarantee that it will stand.
What Valentina should ask the company for
To support the regime, three documents are worth having: the registration of emerging company status in force on the 2023 grant date; the deed of the 2025 capital increase, proving the price and that the subscriber was an independent third party; and the resolution of the governing body that approved the plan as part of the general remuneration policy. Without them, the enlarged exemption and the special valuation are assertions that are hard to prove.
If the company stops being an emerging company
Losing the status does not affect options granted while the company was an emerging company, because of the grant-date rule. But options granted afterwards do fall outside. A company that grows fast can, within a few years, give its first employees the special regime and later ones the general regime. The general rules, with the problem of valuing a share with no market, are in options in an unlisted start-up and what value to use if my company is not listed.
If you would like us to check your company's emerging status and its effect on your options, send us the grant letter and the companies register extract through the equity form.
When the company itself is sold
If Valentina's start-up is sold to a larger group and she sells her shares, the deferred 25,000 € will be allocated to that year as employment income, and she will also calculate the capital gain on the sale. If the buyer is not an emerging company, the company also loses its status from that moment. What happens to equity in an acquisition is explained in the company is being sold.
The emerging company regime is part of what we explain on the Salama Tax page on employee stock options and shares, with the documentation that proves each requirement.