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V0757-15 9 March 2015 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · régimen especial de fusiones

Motives for a absorption merger may be economically valid for special regime

A company asks whether an absorption merger can qualify for the special merger regime and whether its stated motives are economically valid. The DGT responds that if the operation meets commercial requirements and Article 76.1 of the LIS, the stated motives are considered valid and negative taxable bases may be offset within legal limits.

The question raised

Question posed: Whether the special regime provided for mergers in the Corporate Income Tax Law can be applied to the proposed transaction and, specifically, whether the reasons stated are considered economically valid reasons.

The DGT's ruling

To qualify for the special merger regime, the transaction must be carried out in a commercial context pursuant to Law 3/2009 and comply with Article 76.1 of the LIS. Valid economic reasons (such as synergies or efficiency) allow for the application of the regime, provided that the primary objective is not tax advantage. The existence of tax loss carryforwards in the absorbed company does not prevent the application of the regime if the predominant purpose of the transaction is not their utilization. The tax losses may be offset following the requirements and limitations of Articles 84 and the sixteenth transitional provision of the LIS.

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