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V2591-22 21 December 2022 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Mergers by absorption may qualify for special regime if carried out for valid economic reasons

A query was raised regarding whether a merger by absorption between two entities can apply the special regime for restructuring operations. The DGT indicates that it must comply with the requirements of the Structural Changes Act and the Corporate Tax Act, provided that its primary purpose is not tax advantage.

The DGT's ruling

To apply the special merger regime, the transaction must be carried out within a commercial scope pursuant to Law 3/2009 and comply with Article 76.1 of the LIS. The regime shall not apply if the primary objective is fraud, evasion, or the mere obtaining of a tax advantage without valid economic reasons. The saving of maintenance costs could be considered a valid economic reason, although its assessment depends on the facts and circumstances of each case.

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