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V1486-18 31 May 2018 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · bases imponibles negativas

Previous negative tax bases may be offset even if the company becomes a holding company

The taxpayer asks whether the sale of shares prevents the offsetting of negative tax bases from previous financial years when the company was not a holding company. The DGT rules that the limitation under Article 26.4 of the LIS does not apply, as the requirements of acquisition of control and change of activity are not met.

The question raised

Whether the sale of the social shares falls within the provisions of number 4 of Article 26 of the Corporate Tax Law, and, consequently, whether the company will be unable to offset the negative tax bases from previous fiscal years in which it was not a holding company.

The DGT's ruling

For the limitation on the offsetting of negative tax bases under Article 26.4 of the LIS to apply, the circumstances of the acquisition of the majority of the capital, a holding of less than 25% during the period in which the tax base was generated, and the fulfillment of any of the assumptions set forth in letter c) must occur simultaneously. As these circumstances do not occur in the case presented, the entity may offset its pending negative tax bases subject to the usual limits and conditions.

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