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V2071-14 30 July 2014 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · escisión parcial

Post-sale of shares after a partial split may invalidate special tax regime

The DGT responds that a sequence of transactions could invalidate the special regime if the objective is to obtain a fiscal advantage or if the effect is equivalent to an improper split.

The question raised

In the absence of any tax advantage in the acquisition of treasury shares as posed, would the right to apply the special tax regime regulated in Chapter VIII of Title VII of the recast text of the Corporate Income Tax Law be lost?

The DGT's ruling

The sale of shares in the acquiring entity to the partners of the demerged entity may influence the determination of the main purpose of the demerger, as the combination of both operations would produce the same result as a non-proportional partial demerger, which is not covered by the special regime. If the sale of shares to the acquiring company itself (treasury shares) does not have the primary purpose of obtaining a reduction in the taxation of the sale of said shares, the operation could qualify for the special regime.

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