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V0920-22 28 April 2022 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · transmisión de valores

Transfer of shares in a limited company is exempt from ITPAJD and VAT if there is no intent to evade tax

The taxpayer intends to acquire 20% of the shares in a company that owns a property currently leased to the acquirer. The DGT rules that the transfer of securities is exempt from ITPAJD and VAT, unless it is proven that the transaction is carried out to evade the taxes that would otherwise apply to the transfer of the real estate.

The question raised

Taxation of the operation.

The DGT's ruling

The transfer of securities is generally exempt from VAT and ITPAJD. However, if it is carried out in the secondary market with securities not admitted to trading and with the intent to evade real estate tax, it shall be taxed as a transfer of real estate. There are cases where such evasion is presumed (such as obtaining control of an entity with real estate assets exceeding 50%), but this allows for evidence to the contrary. In the specific case, as the circumstances of presumed evasion do not apply, the operation would be exempt, without prejudice to the Administration's ability to prove the intent to evade in a subsequent proceeding.

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