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V0913-23 19 April 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Exchange and merger may qualify under special tax neutrality regime

A family group asks whether the transfer of shares from one entity to another and a subsequent improper merger can benefit from the special tax neutrality regime. The DGT states that this is possible if LIS requirements are met and the operation does not primarily aim at tax advantage.

The question raised

First. - Do the projected operations meet the requirements for the application of the special regime regulated in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax? In particular, can it be understood that it is carried out for valid economic reasons?

The DGT's ruling

For the exchange of securities, it is required that the acquiring entity obtains the majority of voting rights and that the requirements of Art. 80 LIS are met. In an improper merger, if carried out under the Law on Structural Modifications and complying with Art. 76.1 LIS, it may qualify for the special regime. However, the regime shall not apply if the main objective of the operation is fraud, evasion, or the mere obtaining of a tax advantage without valid economic reasons. The verification of these reasons is a matter of fact that must be assessed by the inspection bodies according to the circumstances of the case.

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