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V2094-20 23 June 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · régimen especial de fusiones

A merger may qualify for the special regime if it meets commercial requirements and has valid economic motives

A company inquired whether a merger of its subsidiaries could apply the special regime under the LIS and whether its motives were economic. The DGT states that it must comply with commercial law and Article 76.1.a) of the LIS, and must not have the primary objective of fraud or tax advantage.

The question raised

Whether the described transaction 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

To apply the special merger regime, the transaction must be carried out under Law 3/2009 and comply with Art. 76.1.a) of the LIS. 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. The reasons alleged by the taxpayer could be considered valid, although their assessment is a matter of fact. The existence of tax loss carryforwards in the absorbing company does not invalidate the regime if it is not the preponderant purpose of the transaction.

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