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V0031-15 9 January 2015 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Motives for a merger of a fully owned subsidiary may be economically valid

A company asks whether a merger of a fully owned subsidiary may qualify for the special merger regime under TRLIS and if its motives are economically valid. The DGT responds that if the transaction meets commercial and fiscal requirements, it may apply the special regime if the motives are rationalisation or restructuring, not merely fiscal.

The question raised

Whether the application of the special regime of Chapter VIII of Title VII of the consolidated text of the Corporate Income Tax Law is appropriate for the proposed operation, and whether the alleged reasons are considered economically valid for these purposes.

The DGT's ruling

The operation may qualify for the special regime if it is carried out within a commercial scope pursuant to Law 3/2009 and complies with Article 83.1 of the TRLIS. The reasons of structural simplification, operational efficiency, and financial reinforcement are considered economically valid according to Article 96.2. The existence of negative tax bases in the absorbed company does not prevent the application of the regime, although their offsetting shall be subject to the limits of Articles 90 and DT 41a. The deductibility of the difference between the acquisition price and the equity will depend on compliance with the requirements of Article 89.3.

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