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V1561-14 13 June 2014 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Merger by absorption may qualify for special Corporate Tax regime and be exempt from VAT if an economic unit is transferred

A company has enquired whether a merger by absorption of two entities within the same family group can apply the special Corporate Tax regime. The DGT indicates that this is possible provided commercial and economic requirements are met, and further analyses the non-applicability of VAT and Stamp Duty (ITPAJD).

The question raised

1) Whether the described operation may qualify for the special tax regime of Chapter VIII, Title VII of the Recast Text of the Corporate Income Tax Law approved by Royal Legislative Decree 4/2004, of March 5.

The DGT's ruling

The operation may qualify for the special Corporate Income Tax regime if carried out under Law 3/2009 and complies with Article 83.1 of the TRLIS, provided that valid economic reasons exist and it is not for fraud or evasion. Regarding VAT, the transfer shall not be subject to tax if the transferred elements constitute an autonomous economic unit capable of carrying out an activity on its own. Regarding ITPAJD, if the merger is a restructuring operation according to the TRLIS, it shall be not subject to the corporate operations modality and exempt in the other modalities.

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