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V0317-21 22 February 2021 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · régimen especial de fusiones

Merger could qualify for IS special regime if commercial and economic requirements are met

A company inquired whether a merger involving a subsidiary owning real estate could apply for the IS special regime and whether its economic motives were valid. The DGT states that the operation must comply with commercial law and IS requirements, with economic motives being valid only if they reflect actual facts.

The question raised

1) Whether the described transaction could benefit from the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax and whether the economic reasons are valid.

The DGT's ruling

To apply the special Corporate Income Tax regime, the transaction must be carried out within a commercial scope pursuant to Law 3/2009 and comply with Article 76.1.c) of the Corporate Income Tax Act. The reasons presented regarding simplification and cost reduction could be valid, although their classification depends on the facts. Regarding VAT, non-liability requires that the transferred elements constitute an autonomous economic unit within the transferor. Regarding Transfer Tax and Stamp Duty, the transaction could be exempt if it is classified as a restructuring.

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