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V1672-17 29 June 2017 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · transmisión de valores

Acquisition of unlisted shares may be taxed as a real estate transfer if evasion intent is presumed

The taxpayer asks whether purchasing a 17.45% stake in a company whose assets consist primarily of real estate not used for business activities is exempt from ITPAJD. The DGT explains that while the general rule is exemption, if the transaction is intended to evade real estate transfer tax, it will be taxed as such.

The question raised

Whether the acquisition of these shares will be exempt from the Transfer Tax and Stamp Duty.

The DGT's ruling

The transfer of securities not admitted to trading on an official secondary market is exempt from ITP-AJD, unless it is intended to evade the tax that would apply to the transfer of the entity's real estate assets. This evasion is presumed if control is obtained over an entity whose assets consist of at least 50% real estate not used for business or professional activities. The intent to evade is a question of fact that must be proven by the Administration, although there are cases of iuris tantum presumption that allow for evidence to the contrary.

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