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V2620-22 21 December 2022 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Absorption merger may qualify for special tax neutrality if valid economic reasons exist

An enterprise group asks whether the merger of four ophthalmology entities into one can apply the special merger regime and if the integration motives are valid. The DGT states that if the operation meets commercial and LIS requirements, it may qualify for this regime provided there are valid economic reasons and it is not a strategy to exploit negative taxable bases.

The DGT's ruling

If the merger is carried out within a commercial context and complies with Article 76.1 of the Corporate Income Tax Law, it may benefit from the special tax neutrality regime. Economic motives for restructuring and rationalization may be valid, provided they are not intended to obtain a tax advantage. The existence of tax loss carryforwards does not invalidate the regime if the primary purpose of the operation is not their exploitation. Regarding VAT, the transfer of an autonomous economic unit is not subject to the tax. Regarding Transfer Tax on Property Transfers and Legal Acts and Documents, the operation is a restructuring that is either not subject to or exempt from tax, as applicable.

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