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V0774-23 31 March 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Merger by absorption may qualify for special regime if carried out for valid economic reasons

A holding company sought clarification on whether the merger by absorption of its six subsidiaries, which form a tax consolidation group, could qualify for the special restructuring regime. The DGT indicates that this is possible provided the transaction meets commercial and tax requirements and its primary objective is not tax advantage.

The question raised

Question posed: Whether the described operation may benefit from the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.

The DGT's ruling

To benefit from the special merger regime, the operation must be carried out within the commercial sphere pursuant to Law 3/2009 and comply with Article 76.1 of the LIS. It shall not be applicable if the primary objective is fraud, evasion, or the mere obtaining of a tax advantage without valid economic reasons. In the event that the requirements are met, the absorbing company shall subrogate into the rights of the absorbed companies to offset negative tax bases, subject to the limits of the law. The administration shall verify whether real economic reasons exist to prevent the application of the regime if a purely fiscal purpose is detected.

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