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V2497-24 9 December 2024 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · bases imponibles negativas

Negative tax bases of an absorbed company may be offset provided there is no double compensation

The taxpayer asks whether they can offset the negative tax bases of entity F following its acquisition and absorption. The DGT rules that the limitation due to a change of control does not apply if the requirements of letter c) are not met and that, in tax-neutral mergers, losses may be offset as long as no double compensation of those losses occurs.

The question raised

1/ Whether the limitation on the offsetting of negative tax bases contained in Article 26.4 of the LIS applies to the taxpayer regarding the bases of entity F.

The DGT's ruling

The limitation set forth in Article 26.4 of the LIS only applies if the circumstances described in letters a), b), and c) occur simultaneously. In merger operations under the tax neutrality regime, the negative tax bases of the absorbed entity may be offset by the absorbing entity pursuant to Article 84 of the LIS. However, to prevent double offsetting, these bases shall not be offset if they have given rise to the depreciation of the equity interest in the acquiring entity or in another entity within the group.

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