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V2131-22 11 October 2022 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Mergers by absorption may qualify for special tax regime if valid economic reasons exist

A query was raised regarding whether a merger by absorption of several entities can apply the special Corporate Income Tax regime and offset negative tax bases. The Directorate General for Taxes (DGT) indicates that if the operation meets commercial and tax requirements and is supported by valid economic reasons, it may qualify for said regime.

The DGT's ruling

To apply the special merger regime, the transaction must be carried out within the commercial sphere pursuant to Law 3/2009 and comply with Article 76.1 of the LIS. The regime shall not apply if the primary objective is tax fraud or evasion, or if it lacks valid economic reasons such as the restructuring of activities. If the requirements are met, the negative tax bases of the absorbed companies may be offset in the absorbing company pursuant to Article 84 of the LIS.

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