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V2615-19 24 September 2019 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · transmisión de valores

Secondary market securities transfers exempt from ITP and AJD if no intent to evade tax

A query was raised regarding whether the transfer of shares in a real estate investment company is exempt from ITP and AJD under the Securities Market Law. The DGT ruled that the transfer of securities is exempt, unless the transaction is intended to evade the tax due on the transfer of the underlying real estate assets.

The question raised

Confirmation that the transfers of shares of the PROPCOs, carried out within the context of the planned co-investment operation, shall be subject to and exempt from ITP and AJD in application of the provisions of Article 314 of the Securities Market Law, as they do not fall under any of the cases of existence of evasive intent established in Article 314.2 of the Securities Market Law.

The DGT's ruling

The transfer of securities on the secondary market is exempt from Transfer Tax (ITP) and Stamp Duty (AJD), unless it is carried out with the intent to evade the taxes that would apply to the transfer of real estate. If the presumptions of evasion set forth in Article 314.2 of the Securities Market Law (LMV) apply, the Administration must prove the intent or the taxpayer must prove otherwise. In this case, as the real estate assets are tied to an economic activity, the presumptions of evasion do not apply.

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