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V0015-24 13 February 2024 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · escisión parcial

Partial spin-offs and absorption mergers may qualify for tax neutrality

The DGT responds that partial financial spin-offs and absorption mergers may apply to the deferral regime if they meet commercial and LIS requirements, provided their main objective is not fiscal advantage.

The question raised

Whether the described operations may qualify for the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax and, therefore, whether the capital gains that may arise at the level of the companies involved in said operations may be subject to the provided deferral regime and whether valid economic reasons exist.

The DGT's ruling

For a partial demerger, the operation must be characterized as such commercially and comply with Article 76.2.1º c) of the LIS, with the demerged entity retaining a line of business or majority holdings. In a merger by absorption, it must be carried out under the protection of Royal Decree-Law 5/2023 and comply with Article 76.1 of the LIS. In both cases, the neutrality regime shall not apply if the primary objective of the operation is fraud, evasion, or the mere obtaining of a tax advantage without valid economic reasons.

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