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V2625-17 13 October 2017 · SG de Impuestos sobre el Consumo Criterion in force
IVA · transmisión de valores

Share transfers may be VAT exempt if company properties are used for business activities

A company whose sole assets are leased industrial premises has enquired whether the transfer of its shares could be subject to VAT under anti-avoidance rules. The DGT has ruled that if the properties are used for a business activity for VAT purposes, the presumption of tax avoidance does not apply.

The question raised

Question posed: Whether it would be understood that the real estate owned by SL1, operated under a leasing regime, would be used for or not for its business activity within the scope of Value Added Tax and, consequently, whether none of the anti-avoidance cases established in Article 314 of the Securities Market Law would be applicable.

The DGT's ruling

To apply the exception to the exemption on the transfer of securities, there must be an intent to avoid the tax that would apply to the transfer of real estate. For the purposes of Article 314 of the TRLMV, the concept of assets used for business purposes is that of the VAT regulations, considering as used those that form part of the business assets. If the real estate assets are used for business activities, the cases of presumed intent to avoid tax are not incurred.

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