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A real estate developer has enquired whether the acquisition of all shares in companies holding real estate assets would be subject to VAT or Stamp Duty. The DGT has ruled that the transfer of securities is exempt, unless the anti-avoidance clause under Article 108 of the LMV is applicable.
Question posed: Whether the consultant should be taxed, and how, by the Transfer Tax on Onerous Transfers or by Value Added Tax in the event of acquiring all the shares of any of the aforementioned companies, and whether the possibility exists that, for said operation, they would be taxed by Value Added Tax in addition to the aforementioned tax.
The transfer of securities is exempt from VAT and Transfer Tax, unless it takes place in the secondary market, the securities are not admitted to official trading, and there is an intent to evade tax. If cases of presumption of evasion occur (such as controlling an entity with at least 50% of real estate assets not used for business activity), the burden of proof shifts to the taxpayer. Double taxation is not possible, as for an operation to be taxed under Transfer Tax (onerous transfers of property), the operation must be exempt from VAT.
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