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V2495-24 9 December 2024 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · bases imponibles negativas

Negative tax bases may be offset if the new partner already held at least 25% of the entity

The taxpayer asks whether negative tax bases can be offset following a change in shareholding resulting from an inheritance. The DGT determines that, since the requirement that new partners previously held less than 25% was not met, the limitation due to a change of control does not apply.

The question raised

Question posed: Whether the accumulated negative tax bases can be offset from the 2018 fiscal year onwards, which is when the activity resumed (since the change in shareholding originated from a mortis causa transfer).

The DGT's ruling

For the limitation on the offsetting of negative tax bases due to a change in shareholding to apply under the TRLIS, the new partner must have held a stake of less than 25% at the time the losses were generated. In this case, the spouse already held a 36% stake prior to the mortis causa transfer. Therefore, the negative tax bases may be offset against positive income subject to the limit set forth in Article 26.1 of the LIS.

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