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V2693-19 1 October 2019 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Merger by absorption may qualify for special Corporate Tax regime if commercial requirements and valid economic reasons are met

The taxpayer asks whether a merger by absorption can apply the special Corporate Tax regime and what constitutes valid economic reasons. The DGT indicates that if the transaction meets commercial requirements and those of Article 76.1 LIS, and is not intended for fraud, said regime may apply.

The question raised

1. Whether the described operations may benefit from the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax and whether valid economic reasons exist.

The DGT's ruling

To benefit from the special merger regime, the operation must be carried out within the commercial sphere pursuant to Law 3/2009 and comply with Art. 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 or rationalization of activities. The reasons alleged by the taxpayer could be considered valid, although their validation depends on the facts. Regarding VAT, the transfer of shares by a pure holding company is not subject to tax, and if it is a mixed holding company, it shall be exempt except for specific exceptions. In terms of ITP and AJD, the operation constitutes an exempt restructuring.

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