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V0573-15 12 February 2015 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Value swaps and absorption mergers may qualify for LIS special regime

A Belgian entity proposes a share exchange and subsequent absorption merger with a Spanish company. The DGT examines whether these transactions qualify for the special restructuring regime and whether the stated economic justifications are valid.

The question raised

Whether the proposed restructuring operations could qualify for the special tax regime regulated in Chapter VII of Title VII of the Corporate Income Tax Law. And whether the economic motives can be considered valid for the purposes of applying the aforementioned special regime.

The DGT's ruling

The exchange of securities may qualify for the special regime of the CIT if the acquiring entity falls within the scope of Directive 2009/133/EC and the shareholders reside in the EU. A merger by absorption may also apply said regime if it meets the terms of Article 76.1 of the CIT. The motives of resource optimization, continuity of activity, and generational succession are considered economically valid pursuant to Article 89.2 of the CIT. Regarding PIT/NRIT, Spain could tax the gains if the asset consists primarily of real estate or if there is substantial participation.

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