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A query was raised regarding whether the transfer of a shareholding between two entities within the same tax group could benefit from the exemption under Article 21 of the Corporate Income Tax Act (LIS). The Directorate General of Taxes (DGT) ruled that the capital gain will not be exempt in this internal transaction because the group fails to meet the requirement of uninterrupted holding during the previous year.
Question raised 1. Possible application of the exemption on income derived from the transfer of securities representing the equity of entities provided for in Article 21 of the LIS between entities that form part of the same tax consolidation group.
To apply the exemption under Article 21.3 of the LIS, compliance with the requirements of participation and holding must be assessed at the level of the tax group. If the group has not held the shareholding uninterruptedly during the year prior to the transfer, the positive income from the internal transaction will not be exempt. However, if in a future transfer outside the group the requirements are met at a consolidated level, the exemption could apply to both the income from the new transfer and the income subject to incorporation following its elimination.
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