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V1935-20 15 June 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Merger by absorption may qualify for special regime if commercial and tax requirements are met

A company owning 100% of two other entities has enquired whether its merger by absorption can apply the special Corporate Tax regime. The DGT indicates that to do so, it must comply with commercial regulations and Article 76.1 of the LIS, and its primary purpose must not be fraud or tax advantage.

The question raised

Whether the described operation may qualify for the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax and whether valid economic reasons exist.

The DGT's ruling

The operation may qualify for the special regime if it is carried out within a commercial scope pursuant to Law 3/2009 and complies with Article 76.1 of the LIS. Likewise, the regime shall not apply if the primary objective is tax fraud or evasion, or if there are no valid economic reasons such as the restructuring or rationalization of activities. Reasons of cost reduction and organizational simplification could be considered economically valid, although their classification depends on the facts.

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