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V2185-22 18 October 2022 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión

Mergers may qualify for special regime if carried out for valid economic reasons rather than tax advantages

A query was raised regarding whether a merger operation can apply the special regime for Corporate Income Tax. The DGT indicates that this is possible provided it meets the requirements of the Capital Companies Act and the Corporate Income Tax Act, as long as the objective is not tax fraud or evasion.

The DGT's ruling

To apply the special merger regime, the transaction must be carried out within a commercial scope pursuant to Law 3/2009 and comply with Article 76.1.a) of the LIS. Said regime shall not apply if the primary objective is fraud, evasion, or the mere obtaining of a tax advantage without valid economic reasons. The assessment of whether the motives are economic or tax-related is a question of fact that the Administration shall verify.

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