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V2412-20 14 July 2020 · SG de Impuestos sobre el Consumo Criterion in force
IVA · participaciones sociales

Sale of shares in a professional company exempt from VAT and Stamp Duty if no avoidance motive exists

A lawyer requested clarification on whether the purchase of shares in a professional civil society, alongside the simultaneous disposal of real estate, was subject to VAT or Stamp Duty. The DGT ruled that the transfer of shares is exempt provided there is no intent to evade real estate taxes, and that the delivery of the property constitutes an operation subject to VAT but partially exempt.

The question raised

Whether the purchase and sale operation of the social shares is subject to Value Added Tax or, where applicable, subject to the transfer of assets modality of the Transfer Tax and Stamp Duty.

The DGT's ruling

The shares of a professional corporation registered in the Mercantile Registry are securities, and their transfer is exempt from VAT and Transfer Tax, unless there is an intent to evade the entity's real estate tax. For the evasion exception to be applicable, there must be an intent to defraud, which is a question of fact that the Administration must prove. In the event that the asset does not contain real estate not related to the activity, the requirements for the presumption of evasion are not met. The transfer of real estate from the corporation to the partners is considered a supply of goods subject to and exempt from VAT.

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