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V1729-20 2 June 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · renta negativa

Negative gains from share transfers included in taxable base if exemption conditions not met

The consultant asks whether negative gains from the sale of shares in an entity must be included in the taxable base if the conditions for exemption under Article 21 or the group scenario under Article 11.10 of the LIS are not met. The DGT responds that, as the conditions for significant participation are not met and the entities do not belong to the same group, the negative gain must be included in the taxable base.

The question raised

Question posed: Whether the negative income obtained by the consulting entity due to the transfer to E of the holdings in B is not subject to the provisions of Article 21 or 11.10 of the LIS and, therefore, such negative income will be included in the tax base of A.

The DGT's ruling

In order for negative income from the transfer of holdings not to be included, the exemption requirements of Article 21.1.a) of the LIS must be met, such as the minimum holding percentage of 5% or an acquisition value of 20 million euros. In this case, as the minimum indirect holding percentage is not met and the entities do not belong to the same group pursuant to Article 42 of the Commercial Code, neither the exemption nor the regime of Article 11.10 applies. Therefore, the negative income must be included in the tax base.

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