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V1344-21 12 May 2021 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Merger by absorption may qualify for special Corporate Tax regime if commercial and economic requirements are met

The taxpayer asks whether a merger by absorption between two companies can apply the special Corporate Tax regime and if their underlying reasons are valid. The DGT indicates that if the operation complies with commercial regulations and Article 76.1 of the Corporate Tax Act, the regime could apply, provided its primary purpose is not fraud or tax advantage.

The question raised

Question raised 1) Whether the described operation could qualify for the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax and whether the economic motives are valid.

The DGT's ruling

To apply 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. The regime shall not apply if the primary objective is fraud or tax evasion, or if there are no valid economic motives such as the restructuring of activities. The existence of tax loss carryforwards does not prevent the application of the regime, provided that the activities are maintained and the predominant purpose is not to exploit them.

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