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V2069-15 2 July 2015 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
ITPAJD · transmisión de valores

Acquisition of control of a real estate holding may be subject to ITPAJD and VAT

A company asks whether purchasing the remaining 45% of a subsidiary to achieve 100% control is exempt from ITPAJD and VAT under the Securities Market Law. The DGT responds that obtaining control of an entity whose assets are predominantly non-business real estate constitutes a real estate transfer for tax purposes.

The question raised

Question raised 1) Whether in the acquisition of the remaining 45% of company D, it would be understood that said transfer would be exempt from the Transfer Tax on Onerous Transfers and Documented Legal Acts, in accordance with the provisions of Article 108 of the Securities Market Law.

The DGT's ruling

The transfer of assets may not be exempt from VAT and Transfer Tax if the intention is to evade real estate tax, especially if the asset is composed of at least 50% real estate not used for business activities. In this case, the tax base shall be the fair value of all asset items that qualify as real estate. Regarding mergers, if the commercial requirements are met, the special regime of the Corporate Income Tax may be applied. The merger operation is not governed by Article 108 of the Securities Market Law as it is a primary market operation.

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