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V0865-24 23 April 2024 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · reorganización empresarial

Tax advantages will only be disregarded if the primary objective is proven to be fraud or tax evasion

A query was raised regarding whether, in the absence of valid economic reasons for a corporate restructuring, only the effects of the sought tax advantage should be eliminated. The Directorate General for Taxes (DGT) ruled that the Administration may only regularise the sought tax advantage following a global assessment proving that the primary objective of the transaction is fraud or tax evasion.

The question raised

Confirmation that, in the event that the motives underpinning the reorganization transaction are not considered valid, the only effects to be eliminated would be those derived from the eventual sought-after tax advantage.

The DGT's ruling

The absence of valid economic reasons constitutes a presumption that the transaction seeks tax fraud or evasion. However, the Administration may only eliminate the sought-after tax advantage when, following a global and case-by-case examination, it is proven that such fraud or evasion is the primary objective of the transaction. The elimination of the tax advantage is distinct from the tax deferral inherent to the restructuring regime.

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