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V2297-23 31 July 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · reducción de base imponible

Applicability of the reduction for the transfer of intangibles under the tax consolidation regime

The DGT clarifies that internal patent assignments do not trigger the LIS article 23 reduction at the time of transfer, but only when the transaction is effectively carried out towards third parties.

The question raised

1º) Whether, given that the assets subject to transfer are eligible for the reduction provided for in Article 23 of Law 27/2014, of November 27, on Corporate Income Tax, the aforementioned article would be applicable, considering that the transfer is made in favor of an entity belonging to the tax consolidation group and the subsequent sale to third parties of the assets for the production of which the said patents will be used.

The DGT's ruling

The reduction provided for in Article 23 of the LIS is not applicable to the transfer of pre-existing intangibles if the transaction is circular, that is, if the transferee company is the same as the original creator of the asset. In the case of assets developed by the entity following the restructuring and transferred to another entity within the same tax group, the income shall be included in the tax base of the group when the transaction is deemed to be carried out with third parties, pursuant to Article 65.2 of the LIS. It shall be at that moment that the application of the reduction is appropriate.

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