Business Operations in Spain (Portfolio 984)

Part of Tax

Tax Management Portfolio, Business Operations in Spain, contains information designed to enable U.S. and other foreign investors to understand the commercial and tax law likely to be of concern to them when conducting their operations in Spain.

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This Portfolio  analyzes in detail the statutory and procedural framework for foreign investment in Spain, as well as general aspects of corporate law, which may help a foreign investor to choose the best investment structure. It also provides a detailed analysis of the Spanish income tax as it applies to individuals, corporations, and partnership-like entities. The Portfolio also discusses the net worth tax, the inheritance and gift tax, the value added tax and other taxes on transactions and services, as well as local and regional taxes.
In addition to the discussion of Spain's tax treaties contained in the Detailed Analysis, a comparative table of the withholding rates provided for in the tax treaties is contained in the Worksheets as well as a complete list of all Spain's tax treaties and the text of the Spain-United States tax treaty.


Business Operations in Spain was authored by the following experts.
Andrés Sánchez López

Andrés Sánchez López, born Madrid, Spain, 1967; admitted to Madrid Bar; education: Pontificia de Comillas University (ICADE), Madrid, Spain (Law Degree, 1990); Pontificia de Comillas University (ICADE), Madrid, Spain (Business Studies Degree, 1991).

José Manuel Ortiz de Juan

José Manuel Ortiz de Juan, born Madrid, Spain, 1969; admitted to Madrid Bar; education: Complutense University, Madrid, Spain (Law Degree, 1992); IE Law School, Madrid, Spain (LL.M. 1996).

Table of Contents

Detailed Analysis

I. Spain - An Overview

A. Spain - The Country, Its People, and Economy

1. The Country

2. Political Organization

3. The Economy

B. Sources of Law

1. Statutes

2. Court System

3. Arbitration

II. Operating a Business in Spain

A. Foreign Investment Regulations

1. Incentives

a. General State Incentives

b. Regional Incentives

(1) Regional Incentives Granted by State

(2) Regional Incentives Granted by Autonomous Regions, Municipalities, and City Councils

c. European Union Incentives

2. Restrictions

B. Exchange Control and Foreign Investment Regulations

1. Exchange Control

a. General Scope

b. Safeguard Measures

c. Concept of Nonresident

d. Import and Export of Currency

e. Nonresident Accounts in Spain

f. Resident Accounts Abroad

g. Reporting Requirements

h. Commercial Credits

i. Financial Loans

j. Penalties

2. Foreign Investment in Spain

a. Legal Framework

b. Foreign Investment

c. Foreign Investor

d. Means of Contribution

e. Control Measures

f. Other Reporting Requirements

3. Outward Spanish Investment

a. General Scope

b. Spanish Investor

c. Object of Foreign Investment

d. Control Measures

4. Exception to System of General Liberalization

5. Exception to Foreign Investment Regime for Activities Related to National Defense

C. Trade and Commerce Regulations

1. Imports and Exports

a. General

b. Customs Duties

(1) Import Duties

(2) Export Duties

(3) Anti-Dumping Duties

c. Temporary Customs Regimes

(1) Free Zones and Warehouses

(2) Processing under Customs Control

(3) Temporary Import

(4) Inward Processing Regime

(5) Outward Processing Regime

2. General Regulation of Business

a. Competition Provisions

b. Merger Control

c. Antitrust

(1) Restrictive Practices

(2) Abuse of Dominant Position

(3) Competition Registry and Sanctions

d. Price Control

e. Leniency Program

f. Unfair Competition

g. Securities Regulation

3. Intellectual Property

a. Industrial Property

(1) Patents

(2) Utility Models

(3) Trademarks

(4) Trade Names

(5) Designs

b. Trade Secrets

c. Copyrights

D. Immigration Regulations

1. Immigration

2. Employment of Aliens

a. Transnational Work and Residence Permits (Former Type "G" Permits)

b. Temporary Work and Residence Permit (Former Type "B" Initial Permit)

c. Fixed-term Work and Residence Permits

E. Labor Relations

1. General

2. Legal Framework

3. Employment Contracts

a. Kinds of Employment Contract

(1) Contracts for Specific Job or Service

(2) Contracts Conditional on Production Circumstances

(3) Substitute Employment and Other Contracts

b. General Rules and Employment Conditions

c. Changes in Labor Conditions

d. Termination of Employment Contracts

4. Collective Representation and Organizational Rights

a. Company Representation

b. Negotiations and Collective Bargaining

5. Labor Disputes Resolution Procedures

6. Social Security System

a. Registration and Compulsory Contributions

b. Aliens

c. Example of Social Security Contribution

F. Financing the Business

1. Shareholder Financing

a. Equity Capital

b. Shareholders' Loans

c. Hybrid Financial Instruments

2. External Financing

III. Forms of Doing Business In Spain

A. Principal Business Entities

1. Sole Proprietorship

2. Joint Stock Company (Sociedad Anónima)

3. Limited Liability Company (Sociedad de Responsabilidad Limitada)

4. European Stock Company (Sociedad Anónima Europea)

5. Partnership-like Entities

6. Branch of a Foreign Corporation

7. Other Entities

B. Sociedad Anónima

1. Formation

a. Purpose Clause

b. Corporate Name

c. Incorporators

d. Articles of Association

e. Capital and Shares

f. Incorporation Procedures

g. Companies Awaiting Registration (Sociedades en Formación) and Nonregistered Companies (Sociedades Irregulares)

h. Cost of Incorporation

i. Single Shareholder Companies

2. Operation

a. License

b. Amendment of Articles

c. Increase and Reduction of Capital

(1) Capital Increase

(2) Capital Reduction

d. Acquisition of Own Stock and Financial Assistance to Shareholders

e. Management

f. Shareholders' Meetings

g. Board of Directors' Meetings

h. Books and Records

i. Financial Statements

j. Dividends and Other Distributions of Profits

k. Reserves

3. Mergers and Divisions

4. Dissolution

5. Liquidation

6. Reorganization

C. Sociedad de Responsabilidad Limitada

1. Formation

a. General

b. Incorporators

c. Capital

d. Incorporation Procedures

e. Costs of Incorporation

2. Operation

a. General

b. Amendment of Articles

c. Increases and Reductions of Capital

d. Acquisition of Own Quotas and Financial Assistance

e. Management

f. Quota Holders' Resolutions

3. Mergers and Divisions

4. Dissolution and Liquidation

5. Sociedad Limitada Nueva Empresa (New Company)

a. Incorporators

b. Quota Holders

c. Capital

d. Purpose

e. Management

f. Accounting

D. Sociedad Anónima Europea

1. Incorporation

2. Corporate Name

3. Capital

4. Statutory Seat

5. Structure of a Societas Europaea

6. Subsidiary Regulation

E. Partnership-like Entities

1. Sociedad Colectiva

a. General Characteristics

b. Formation

c. Administration

d. Dissolution

2. Sociedad Comanditaria Simple and Sociedad Comanditaria por Acciones

3. Participation Agreements (Contratos de Cuentas en Participación)

F. Branch of a Foreign Corporation

1. Registration

2. Liability

3. Books and Records

G. Other Business Entities

1. Joint Proprietorships (Comunidades de Bienes)

2. Civil Corporation (Sociedad Civil)

3. Temporary Union of Entrepreneurs (Unión Temporal de Empresas)

4. Economic Interest Grouping (Agrupaciones de Interes Económico) and European Economic Interest Grouping

5. Cooperatives (Cooperativas)

IV. Principal Taxes

A. Individual Income Tax

B. Corporate Income Tax

C. Nonresident Income Tax

D. Net Worth Tax

E. Inheritance and Gift Tax

F. Taxes on Transactions and Services

G. Tax on Capital Investment

H. Payroll Tax and Social Security

I. Local and Autonomous Regions' Taxes

J. Other Taxes

V. Taxation of Domestic Corporations

A. What Is a Domestic Corporation?

B. Corporate Income Tax

1. Taxation of Worldwide Income

2. Commercial and Tax Accounting

a. General

b. Accounting and Tax Periods

c. Accounting Methods

d. Valuation Rules

(1) Fixed Assets

(2) Inventory

(3) Financial Instruments

(4) Other Valuation Rules

e. Consolidated Accounts and Tax Returns

f. Reserves

3. Calculation of Gross Income

a. General

b. Capital Gains (Income from Transfer of Assets)

(1) General

(2) Computation of Capital Gains and Losses

(3) Specific Rules

(4) Reinvestment Benefits

c. Dividend Income and Other Income from Financial Investments

d. Income from Foreign Sources

e. Currency Gains and Losses

f. Other Inclusions in Gross Income

g. Other Exclusions from Gross Income

4. Business Expenses

a. General

b. Organizational Expenses

c. Travel and Entertainment Expenses

d. Interest

e. Rents and Royalties

f. Taxes

g. Depreciation and Amortization

h. Obsolete Equipment

i. Charitable Contributions

j. Capital Losses

k. Casualty Losses

l. Reserve Accounts

m. Bad Debts

n. Inventory Write-downs

o. Salaries and Other Labor-Related Expenses

p. Other Deductions from Gross Income

5. Capital Expenditure

6. Loss Carryovers and Carrybacks

7. Tax Credits

a. Profits Distribution Tax Credit

(1) General

(2) Qualifying Profits Distributions

(3) Determination of the Tax Credit

(4) Capital Gains

(5) Other Issues

b. Foreign Tax Credit

c. Tax Reductions with Respect to Certain Categories of Income

d. Investment Tax Credits

(1) Research and Development and Technological Innovation Investments

(2) Investment in the Production of Books and Films

(3) Export-related Investments

(4) Investment in Registered Cultural Assets

(5) Personnel Training Expenses

(6) Computation of Structural Tax Credits

(7) Temporary Tax Credit for the Creation of New Jobs

(8) Environmental Tax Credits

(9) Reinvestment of Extraordinary Profits

(10) Pension Plans

(11) Buildings for Educational Purposes for Employees' Children

e. Other Credits

8. Tax Rates and Calculation of Taxable Income

9. Assessment and Filing

10. Patrimonial Entities (Sociedades Patrimoniales)

11. Tax Treatment of Reorganizations

a. Reorganizations within Corporation

b. Tax-free Reorganizations

(1) General

(2) Tax Treatment of Income Arising from Transfer of Assets

(3) Valuation of Assets Acquired

(4) Tax Treatment of Stockholders

(5) Other Requirements

(6) Special Contributions in Kind

(7) Anti-Abuse Provision

c. Transfer of Tax Residence In and Out of Spain

12. Special and Regional Tax Regimes

a. Collective Investment Undertakings (Instituciones de Inversión Colectiva)

b. Pension Funds

c. Cooperatives

d. Venture Capital Corporations and Funds

e. Corporations for Regional Industrial Development

f. Mining Activities

g. Oil Drilling and Research Companies

h. The Basque Country and Navarra

i. Canary Islands

j. Small Business Incentives

k. Special Tax Regime Applying to Entities Holding Foreign Securities

l. Special Regime for Certain Agricultural Property

m. Special Regime for Shipping Companies According to Tonnage

n. Special Regime for Companies Intended Exclusively to Provide Rental Housing

C. Other Taxes

1. Dividend Tax

2. Capital Investment Tax

3. Value Added Tax

4. Trade, Real Property and Local Taxes

5. Withholding Requirements

6. Other Taxes

VI. Taxation of Foreign Corporations

A. General

B. What Is a Foreign Corporation?

C. Determination of Taxable Income

1. General

2. Business Income Derived without Permanent Establishment

3. Service Income

4. Dividends and Profit Distributions

5. Other Investment Income

6. Real Property

7. Capital Gains

8. Income Not Subject to Spanish Nonresident Income Tax

D. Taxation Method and Tax Payment

1. Tax Rates

2. Withholding Obligations

3. Assessment and Filing

E. Special Tax on Real Property Owned by Nonresident

VII. Taxation of a Branch

A. What Is a Branch?

B. Determination of Taxable Income and Method of Taxation

1. General Method

2. Temporary Permanent Establishment

3. Permanent Establishments that Do Not Complete Business Cycle

C. Branch Distribution Tax

D. Subsidiary versus Branch

VIII. Taxation of Partnerships

IX. Taxation of Other Business Entities

A. Unión Temporal de Empresas

B. Economic Interest Group and European Economic Interest Grouping

X. Taxation of Resident Individuals

A. Individual Income Tax

1. Scope of Taxation

a. Worldwide Income

b. Taxable Year and Allocation of Income

c. Attribution of Income to Taxpayer

2. Residence

a. Concept of Residence

b. Expatriation to a Tax Haven

c. Individuals Seconded to Spain as a Result of an Employment Contract

d. Members of Diplomatic Missions and Consular Offices

e. Residence in an Autonomous Region

3. Determination of Net Income

a. General

b. General Valuation Rules and Presumptions

c. Exempt Income

d. Employment Income

(1) Types of Employment Income

(2) Benefits in Kind

(3) Adjustments to Gross Employment Income

(4) Net Employment Income: Deductible Expenses

(5) Net Employment Income Allowances

e. Income from Capital (Real Property and Investment Income)

(1) Real Property Income

(a) Computation of Income

(b) Adjustments to Net Real Property Income

(c) Deemed Income from Owner-occupied Real Property

(2) Investment Income

(a) Income Categories

(b) Deductible Expenses and Reductions from Investment Income

f. Income from Economic Activities

(1) General

(2) Attribution of Assets to Economic Activity

(3) Computation of Income from Economic Activities

(a) Direct Method of Computation

(b) Special Method of Computation

(4) Reductions of Net Income

g. Capital Gains and Losses

(1) Definition

(2) Exemptions and Special Cases

(3) Computation of Capital Gains or Losses

(a) General Rules

(b) Special Rules

(c) Exemption

h. Special Regimes

(1) Patrimonial Entities Regime

(2) Allocation of Income from Assignment of Rights over Taxpayer's Image

(3) Collective Investment Undertakings

4. Offsetting of Negative Taxable Income Against Positive Taxable Income

5. Personal and Family Allowances

6. Deductions from General Taxable Income

7. Tax Rates and Gross Tax Payable

a. National Tax Rates and Gross National Tax Payable

b. Tax Rates in Autonomous Regions and Gross Regional Tax Payable

c. Deemed Residence

8. Tax Credits

a. General Tax Credits

(1) Acquisition or Restoration of Taxpayer's Primary Residence

(2) Credit for Investments in Economic Activities

(3) Credit for Qualifying Gifts

(4) Credit for Income Derived from Ceuta and Melilla

(5) Credit for Investments in Registered Cultural Assets

(6) Credit for Patronage Activities

(7) Credit for Maternity

(8) Investments in Accounts Earmarked for Constitution of New Company (Sociedad Limitada Nueva Empresa)

b. Net Tax Payable

(1) Net National Tax Payable

(2) Net Regional Tax Payable

c. Double Taxation Tax Credits

d. Tax Credits with Respect to Imputed Income

9. Withholding Taxes and Advance Payments

a. Withholding

(1) Employment Income

(2) Investment Income

(3) Income from Economic Activities, including Professional, Agricultural, Forestry and Stock-breeding Activities

(4) Income from Transfer or Redemption of Shares or Participations in Collective Investment Undertakings

(5) Income from Leasing or Sub-leasing Urban Real Property

(6) Intellectual Property

(7) Prizes

b. Advance Payments

10. Joint Tax Returns: Family Unit

11. Assessment and Filing

a. Obligation to File a Tax Return

b. Payment and Refunds

c. Refund Claims

B. Net Worth Tax

1. Scope of Taxation

a. General

b. Exemptions

2. Residence

a. Resident Individuals

b. Nonresident Individuals

3. Determination of Net Worth

a. Attribution of Worth to Taxpayers

b. Net Worth

(1) Rules of Valuation

(a) Real Property

(b) Assets Connected with Business or Professional Activities

(c) Bank Account Deposits

(d) Quoted Securities (Except for Interests in Collective Investments Undertakings)

(e) Unquoted Securities, Excluding Shares

(f) Unquoted Shares and Other Participation Rights

(g) Life Insurance

(h) Jewelry, Furs, Vehicles, Ships, Aircraft, Antiques, etc.

(i) Rights In Rem

(j) Industrial Property (Patents and Trade Marks) and Intellectual Property (Copyright) Rights

(k) Other Assets and Rights with Economic Value

(l) Valuation of Liabilities and Property Encumbrances

(2) Taxable Amount

4. Tax Rates

5. Foreign Tax Credit

6. Tax Allowance for Ceuta and Melilla

7. Maximum Tax

8. Assessment and Filing

XI. Taxation of Nonresident Individuals

A. Income Tax

B. Net Worth Tax

XII. Inheritance and Gift Tax

A. General

B. Property Received by Resident Individuals

1. Territorial Scope of Tax

2. Taxable Amount

a. General

b. Exempt Transfers

c. Deductible Liabilities

d. Determination of Taxable Amount

e. Allowances

3. Tax Rates

4. Tax Credits

5. Tax Allowance for Ceuta and Melilla

6. Assessment and Filing

C. Property Received by Nonresident Individuals

XIII. Value Added Tax

A. Scope of Taxation

1. Value Added Tax System

2. Taxable Transactions and Persons

a. Taxable Transactions

b. Taxable Persons

(1) Anyone

(2) Habitually or Occasionally

(3) Profit-making Purpose

(4) Independent

(5) Business/Profession

B. Supply of Goods and Services within Spain

1. Supply of Goods within Spain

a. Concept of Supply of Goods

b. Place of Supply

c. Chargeability to Tax

2. Supply of Services Within Spain

a. Concept of Supply of Services

b. Place of Performance of Services

(1) General Rule

(2) Situs of Real Property

(3) Place Where Services Are Physically Carried Out

(4) Location of Recipient of Services

(5) Other Criteria

(6) Special Rule for Certain Intangible, Telecommunication and Electronically Rendered Services

c. Chargeability to Tax

3. Transactions Outside the Scope of Value Added Tax

4. Exempt Transactions

a. Exports from European Union and Other Transactions Related to International Goods Traffic

b. Intra-European Union Supplies of Goods

c. Exemptions for Certain Public Interest Activities

d. Financial and Insurance Transactions

e. Real Property Transactions

f. Other Exemptions

5. Liable Persons

C. Intra-European Union Acquisitions

1. Concept of Intra-European Union Acquisition of Goods

2. Exempt Acquisitions

3. Place of Acquisition

4. Chargeability

5. Liable Persons

6. Triangular Transactions

D. Importation of Goods from Non-European Union Countries

1. Concept of Importation

2. Exemptions

3. Liable Persons

E. Taxable Amount

F. Rates

G. Methods of Assessment and Payment of Tax

1. General

2. Deductible Input Value Added Tax

a. Activities that Carry Right to Deduct Input Value Added Tax

b. Pro Rata Deduction

c. Deduction for Separate Business Sectors

d. Value Added Tax Charged on Acquisition of Fixed Tangible Assets

e. Adjustments in Value Added Tax Deducted

3. Refund Procedure

H. Special Value Added Tax Schemes

I. Other Taxpayer Obligations

XIV. Other Taxes on Transactions and Services

A. Tax on Transfers of Property and Documented Legal Acts

1. Property Transfer Tax

2. Tax on Corporate Events

3. Tax on Documented Legal Acts

4. Assessment and Filing

5. Statute of Limitations

B. Excise Duties

C. Tax on Certain Insurance Premiums

XV. Local Taxes

A. Business Activities Tax

B. Tax on Real Property

C. Motor Vehicle Tax

D. Optional Local Taxes

XVI. Intercompany Pricing

A. Intercompany Price Adjustments Among Domestic Companies

1. Scope of Provision

2. Concept of Related Persons

a. Direct or Indirect Shareholder Relationship

b. Entities that Have Common Shareholders

c. Permanent Establishment

d. Directors' Relationship

e. Group of Companies

f. Family Relationship

g. Tax Haven Residents

3. Determination of Arms' Length Price

4. Advanced Pricing Agreements

B. Intercompany Price Adjustments with Respect to International Transactions

XVII. Special Provisions Relating to Multinational Corporations

A. Foreign Family Foundations

B. Tax Haven Operations

1. Tax Havens

2. Jurisdictions Lacking an Exchange of Information Clause

C. Subpart F-type Provisions

1. Definition of "Controlled Foreign Corporation"

2. Definition of Spanish Shareholder

3. Definition of Tainted Income

4. De Minimis Exemption

5. Low Level Taxation

6. Computation of Attributable Tainted Income

7. Tax Haven Subsidiaries

8. Formalities

9. Compatibility with Tax Treaties

XVIII. Avoidance of Double Taxation

Introductory Material

A. Foreign Tax Credit

1. Corporate Income Tax Direct Foreign Tax Credit

2. Parent-Subsidiary Distributions

a. General

b. Corporate Income Tax Indirect Foreign Tax Credit

c. Exemption for Distributions and Capital Gains from Qualifying Company and for Profits Distributed by Permanent Establishment

3. Individual Income Tax Foreign Tax Credit

4. Other Foreign Tax Credits

5. Exemption for Profit Distributions by Permanent Establishments

6. Tax Deduction for Investments for Acquisition of Foreign Companies

B. Tax Treaties

1. General

2. Taxation of Business Income

a. Permanent Establishment

b. Industrial or Commercial Profits

c. Branch Distributions Tax

3. Taxation of Investment Income

a. Dividends

b. Interest

c. Royalties

d. Capital Gains

e. Application of Treaties

4. Avoidance of Double Taxation

C. Tax Treaties with the United States

1. 1990 Spain-United States Tax Treaty

a. Scope of Application

b. Business Profits and Independent Personal Services

c. Investment Income

d. Real Property Investments

e. Capital Gains

f. Other Income

g. Relief from Double Taxation

2. Estate and Gift Tax and Other Treaties

XIX. Tax Procedures

A. Fiscal Identification Number and Registration Obligations

B. Supply of Information to Tax Authorities

C. Collection Procedure

1. Payment of Tax

2. Extension of Time for Payment

3. Late Payment

D. Statute of Limitations

E. Fines and Penalties

F. Claims and Appeals

G. Rulings

1. Rulings Issued by the General Directorate of Taxes

2. Rulings Issued by the Tax Authorities in Charge of the Tax Assessment

H. General Anti-Avoidance Provisions

Working Papers

Working Papers

Table of Worksheets


Worksheet 1 Form DP-1, Prior Declaration of Investment in Unquoted Portfolio, Branch or Other Type of Investment Originating in Tax Haven

Worksheet 2 Form DP-2, Prior Declaration of Real Property Investment Originating in Tax Haven

Worksheet 3 Form D-1A, Declaration of Unquoted Portfolio, Branch and Other Types of Investment

Worksheet 4 Form D-1B, Declaration of Total or Partial Liquidation of Investments Declared on Form D-1A

Worksheet 5 Form D-2A, Declaration of Real Property Investment

Worksheet 6 Form D-2B, Declaration of Total or Partial Liquidation of Real Property Investment

Worksheet 7 Certificate of Residence (Models)

Worksheet 8 Appointment of Nonresident Tax Representative

Worksheet 9 SA Articles of Incorporation

Worksheet 10 Form 200, Corporate Income Tax Return for Resident Corporations

Worksheet 11 Form 210, Nonresident Income Tax Return

Worksheet 12 Rates of Withholding at Source on Employment Income

Worksheet 13 List of Comprehensive Double Taxation Agreements and Related Protocols Signed by Spain as of October 1, 2008

Worksheet 14 Table of Withholding Tax Rates

Worksheet 15 Tax Havens (Royal Decree 1080/1991 of July 5)

Worksheet 16 1990 Spain-United States Income Tax Treaty (In Force)

Worksheet 17 Form 211, Nonresident Income Tax Withholding on Acquisition of Immovable Property

Worksheet 18 Form 213, Special Tax on Real Estate Owned by a Nonresident

Worksheet 19 Form 214, Net Worth and Nonresidents Income Tax Simplified Tax Return

Worksheet 20 Form 215, Quarterly/Monthly Nonresident Tax Return

Worksheet 21 Form 216, Nonresident Withholding Tax Return

Worksheet 22 Form 212, Capital Gains Arising from Immovable Property Tax Return for Nonresidents Without Permanent Establishment

Worksheet 23 Form 296, Summary of Nonresident Withholding Tax Return

Worksheet 24 Form 187, Collective Investment Undertakings Shares or Quotas Return and Summary of Residents Corporations/Individuals and Nonresidents Withholding Tax Return Regarding Income and Capital Gains from those Shares and Quotas

Worksheet 25 Form 117, Withholdings on Income or Capital Gains Made on Transfer of Shares and Quotas of Collective Investment Undertakings




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