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A real estate company has enquired whether a projected merger can qualify for the special Corporate Income Tax regime. The Directorate General for Taxes (DGT) has ruled that this is possible provided the transaction meets the requirements of the Corporate Income Tax recast text and is driven by valid economic motives, such as structural simplification. The mere existence of tax loss carryforwards does not invalidate the application of the regime.
Question posed: Whether the application of the special regime of Chapter VIII of Title VII of the consolidated text of the Corporate Income Tax Law is appropriate for the transaction proposed. And whether the alleged motives are considered economically valid for these purposes.
To apply the special merger regime, the transaction must comply with the requirements of Article 83.1 of the TRLIS and be carried out under the Structural Changes Law. The motives must be economic (such as rationalizing activities) and must not have a primary purpose of tax advantage. The existence of negative tax bases does not prevent the regime, but the offsetting of these shall be limited by Article 90.3 of the TRLIS and DT 41st to avoid the double offsetting of impairment losses.
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