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V1813-20 8 June 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

A merger by absorption may qualify for the special regime if valid economic reasons exist

A query is made as to whether a merger by absorption operation may apply the special regime for mergers, demergers, and contributions of assets. The DGT indicates that this is possible if the operation meets commercial and tax requirements, and is carried out for valid economic reasons and not for purely tax purposes.

The question raised

Question posed: Possibility that the projected operation may qualify for the special tax regime regulated in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.

The DGT's ruling

The operation may qualify for the special regime if it is carried out within the commercial sphere pursuant to Law 3/2009 and complies with Article 76.1 of the LIS. It shall not be applicable if the primary objective is fraud or tax evasion, or if it lacks valid economic reasons such as the restructuring or rationalization of activities. The existence of tax loss carryforwards does not invalidate the regime, provided that this is not the preponderant purpose of the operation and the limits of Articles 84 and the 16th Additional Provision of the LIS are respected.

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