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V2043-14 28 July 2014 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · transmisión de valores

Transfer of shares may be exempt from ITPAJD and VAT if there is no intent to evade tax

An entity has requested clarification on whether the enforcement of a pledge over shares, which were acquired through the contribution of real estate, is exempt from tax under the Securities Market Law. The DGT indicates that, as the real estate is tied to business activity, the presumption of tax evasion does not apply, although the intent to evade tax is a matter of fact that the Administration must prove.

The question raised

Whether the transfer of said shares would be exempt from taxation based on the provisions of Article 108 of the Securities Market Law.

The DGT's ruling

For the transfer of securities not admitted to trading on a secondary market to be exempt, the cases of evasion set forth in paragraph 2 of Article 108 of the Securities Market Law must not occur. In this case, as the real estate assets are used for business activities, the objective requirements of subsections a), b), or c) to presume evasion are not met. Nevertheless, the intent to evade taxes is a question of fact that the Administration must prove, and the interested party may provide evidence to the contrary.

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