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A query was raised regarding whether a merger operation meets the requirements for the special tax regime and its impact on the offsetting of negative tax bases. The Directorate General for Taxes (DGT) ruled that if the operation is driven by valid economic reasons and complies with commercial regulations and the Corporate Income Tax Law (TRLIS), it may qualify for said regime.
Question posed: Whether the described transaction meets the objective definition provided for the application of the special tax regime under Chapter VIII, Title VII of the Recast Text of the Corporate Income Tax Law approved by Royal Legislative Decree 4/2004, of March 5.
To apply the special merger regime, the transaction must be carried out within a commercial scope pursuant to Law 3/2009 and comply with Article 83.1 of the TRLIS. It shall not apply if the primary objective is tax fraud or evasion or if it lacks valid economic reasons. The existence of tax loss carryforwards in the transferor does not prevent the regime if the activities are maintained. The offsetting of such losses by the acquirer shall be limited by Article 90.3 of the TRLIS if the entities form part of a group pursuant to Article 42 of the Commercial Code.
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