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A query was raised regarding whether a merger by absorption between two entities can apply the special merger regime. The DGT indicates that for this to occur, the transaction must comply with the requirements of the Capital Companies Act and the Corporate Income Tax Act, and must not have fraud or tax advantage as its primary objective.
Cuestión planteada
Para aplicar el régimen especial de fusiones, la operación debe realizarse en el ámbito mercantil según la Ley 3/2009 y cumplir el artículo 76.1 de la LIS. No se aplicará el régimen si el objetivo principal es el fraude o la evasión fiscal, o si no existen motivos económicos válidos como la reestructuración o racionalización de actividades. La validez de los motivos económicos es una cuestión de hecho que la Administración podrá comprobar.
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