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A query was raised regarding whether a merger by absorption between two entities can apply the special merger regime under the Corporate Tax Act. The DGT indicates that this is possible if carried out under commercial regulations and meets the requirements of Article 76.1 of the LIS, provided its primary purpose is not tax fraud or evasion.
Question raised: Whether the projected merger by absorption is eligible to benefit from and apply the special tax regime for mergers, demergers, contributions of assets, exchange of securities, and change of registered office of a European Company or a European Cooperative Society from one Member State to another within the European Union, as regulated in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.
To apply the special regime, the transaction must be carried out within the commercial sphere pursuant to Law 3/2009 and comply with the provisions of Article 76.1 of the LIS. Furthermore, pursuant to Article 89.2 of the LIS, the transaction must not have the primary objective of tax fraud or evasion, and must respond to valid economic reasons rather than the mere pursuit of a tax advantage. Reasons of administrative simplification or unification of assets could be valid, although their classification depends on the facts.
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