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V2362-23 31 August 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · régimen de neutralidad fiscal

Tax neutrality regime applicable to mergers if LIS requirements are met and no fraud is present

The taxpayer asks whether the absorption of Company A by Company B can qualify for the special merger regime. The DGT indicates that if the transaction complies with the terms of Article 76.1 of the LIS and is carried out within the commercial framework of Royal Decree-Law 5/2023, said neutrality regime could be applied.

The question raised

Whether the special tax regime for mergers, spin-offs, asset contributions, and exchange of securities provided for in Chapter VII, Title VII of Law 27/2014 of November 27 on Corporate Income Tax can be applied to said transaction, or whether it must be taxed under the general regime.

The DGT's ruling

The transaction may benefit from the tax neutrality regime if it is carried out within a commercial scope pursuant to Royal Decree-Law 5/2023 and meets the requirements of Article 76.1 of the Corporate Income Tax Act (LIS). However, the regime shall not be applicable if the primary objective of the transaction is fraud, tax evasion, or the obtaining of a tax advantage without valid economic reasons. The Administration shall determine the existence of valid economic reasons by analyzing the facts of each specific case.

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