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V2045-19 7 August 2019 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · régimen especial de fusiones

Merger could qualify for special regime under Law 3/2009 with valid economic reasons

The DGT states that a merger may apply for the special regime of European companies if it complies with Law 3/2009 and the LIS, provided it is not for tax fraud or evasion.

The question raised

Question posed: Whether it is appropriate to apply to the proposed transaction the special 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, contained in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.

The DGT's ruling

To apply the special regime under Chapter VII of Title VII of the LIS, the transaction must be carried out within a commercial scope pursuant to Law 3/2009 and comply with the terms of Article 76.1 of the LIS. Furthermore, pursuant to Article 89.2 of the LIS, it shall not apply if the primary objective is fraud, evasion, or the mere obtaining of a tax advantage without valid economic reasons. Reasons of restructuring or rationalization of activities may be considered economic, although their validation depends on the facts.

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