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A query was raised regarding whether a merger by absorption between two entities can apply the special Corporate Income Tax regime. The DGT indicates that for this to occur, the transaction must be carried out under commercial law and meet the requirements of Article 76.1 of the LIS, provided its primary purpose is not tax advantage.
Cuestión planteada
La aplicación del régimen especial requiere que la operación se realice en el ámbito mercantil y cumpla el artículo 76.1 de la LIS. No se aplicará el régimen si el objetivo principal es el fraude o la evasión fiscal, o si carece de motivos económicos válidos como la reestructuración de actividades. El hecho de que la absorbida tenga bases imponibles negativas no impide el régimen, siempre que no sea la finalidad preponderante y se mantengan las actividades.
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