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V0960-14 3 April 2014 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
OTRO · disolución de sociedades

Dissolution of a Spanish society with property transfer subject to ITPAJD; gains taxed under IRNR for non-residents

Shareholders of a Spanish company with real estate and a mortgage seek advice on taxation following the dissolution of the entity and the transfer of the property to a German company. The DGT confirms that the dissolution is subject to ITPAJD as a corporate transaction and that the capital gains of non-resident shareholders are taxable in Spain under IRNR.

The question raised

Taxation that would correspond under the Transfer Tax and Documented Legal Acts Tax (ITPAJD) regarding the operation of dissolution and liquidation of the Spanish entity, involving the delivery of the real estate to the two partners and the assumption of the company's debt by said partners.

The DGT's ruling

The dissolution of the Spanish company is a corporate transaction subject to the Transfer Tax and Documented Legal Acts Tax (ITPAJD), whereby the partners are taxed on the real value of the assets received without deducting debts. The contribution of the real estate to the German entity may constitute an onerous transfer (if the KG has legal personality) or may not involve a change in assets (if it lacks legal personality). In both cases, pursuant to the Spain-Germany Double Taxation Convention, Spain may tax capital gains and wealth tax as the assets are real estate located in Spanish territory.

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