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The consultation examines whether an absorption merger between two entities by a third party may qualify for the neutral tax regime. The DGT responds that this is possible as long as the operation meets LIS requirements and does not have fraud or tax evasion as its primary objective.
Question raised
Merger operations may qualify for the tax neutrality regime under Chapter VII of Title VII of the LIS, allowing capital gains not to be included in the taxable base of the companies or partners. To this end, the operation must comply with the requirements of Article 76.1 of the LIS and must not have the primary objective of tax fraud or evasion (Article 89.2 LIS). The absence of valid economic motives may presume fraud, but the existence of legitimate business objectives allows for the application of the regime. In the specific case, the motives of structural improvement, management simplification, and the elimination of contractual obligations allow for the application of tax neutrality.
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