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The consultant asks whether a merger by absorption of a wholly owned subsidiary can benefit from the fiscal neutrality regime. The DGT confirms that this is possible as long as the LIS requirements are met and the merger is not primarily aimed at tax fraud or evasion.
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If the merger operation is carried out within the commercial sphere pursuant to Royal Decree-Law 5/2023 and complies with Article 76.1 c) of the LIS, it may benefit from the tax neutrality regime. In this case, income derived from the transfer as well as income from the cancellation of the participation shall not be included in the taxable base. However, the regime shall not apply if the primary objective is tax fraud or evasion, or if a spurious tax advantage is sought.
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