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The consultant asks whether selling all shares in a subsidiary (X1) to an external company (LuxCo2) would result in the exclusion of that subsidiary and other group-dependent entities. The DGT responds that no exclusion will occur as long as the required ownership and voting rights are preserved.
Question raised 1. Confirmation that the transfer of 100% of the shares of X1 to LuxCo2 by X would not lead to the exclusion of company X1, nor of the companies in which it participates in X1 (A and B), given that the parent company of the group (X until 31 December 2015 or NR1 from 1 January 2016) will indirectly hold at least 75% of the share capital and the majority of voting rights of X1, A and B throughout the entire tax period in question.
The sale of shares in entity X1 to company LuxCo2 does not prevent their classification as dependent entities of the tax group, provided that the shareholding and voting rights requirements of Article 58.3 of the LIS are met. Likewise, the companies must comply with the requirements of the parent entity and not incur the exclusion grounds set forth in Article 58.4 of the LIS. This criterion applies regardless of whether the new entity is incorporated or acquired, provided that indirect control is maintained throughout the tax period.
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