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A query was raised regarding whether a merger by absorption can apply the special merger regime under the Corporate Income Tax Act (LIS). The Directorate General for Taxes (DGT) responds that this is possible provided the transaction complies with commercial regulations and the requirements of Article 76.1 of the LIS, and that its primary purpose is not to obtain a tax advantage.
Question posed: Whether the proposed merger transaction, in application of the provisions of Chapter VII of Title VII of the Corporate Income Tax Law (hereinafter, LIS), which regulates the special regime for mergers, demergers, contributions of assets, exchange of securities, and change of registered office of a European Company or a European Cooperative Society from one Member State to another of the European Union, may benefit from the special regime provided for in Articles 76 to 89 of the aforementioned LIS?
To apply the special regime, the transaction must be carried out within the commercial sphere pursuant to Royal Decree-Law 5/2023 and comply with Article 76.1 of the LIS. The regime shall not apply if the primary objective is tax fraud or evasion, or if it lacks valid economic reasons such as the restructuring of activities. The subrogation of negative tax bases is only possible within this special regime.
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