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V2345-23 28 August 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · escisión total no proporcional

Non-proportional total demergers require segregated assets to form autonomous business lines

A company has enquired whether a non-proportional total demerger can qualify for the special regime under the Corporate Income Tax Act. The DGT has ruled that to apply this regime, the divided assets must constitute business lines capable of operating independently.

The question raised

Whether the proposed restructuring operation could qualify for the special regime for mergers, spin-offs, asset contributions, exchange of securities, and change of registered office of a European Company or a European Cooperative Society from one Member State to another within the European Union, as provided for in Chapter VII of Title VII of Law 27/2014 on Corporate Income Tax, for both the companies and the natural persons involved. And whether the economic reasons can be considered valid for the purposes of applying the aforementioned special regime.

The DGT's ruling

For a non-proportional total spin-off to benefit from the special regime, the segregated assets must constitute business lines, understood as sets of assets capable of operating by their own means. This requires a differentiated business organization and the prior existence of said activity in the transferring entity. If the spin-off only divides isolated elements such as real estate or financial assets without an autonomous economic exploitation, the special regime may not be applied.

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