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V2748-20 9 September 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Exchange regime applicable if voting rights acquired and legal requirements met

Spanish residents inquire whether transferring shares in one entity to another qualifies for the special share exchange regime. The DGT confirms it is possible if a majority of voting rights is obtained and legal requirements are fulfilled, provided the transaction is not primarily aimed at fraud or tax advantage.

The question raised

1. Whether the described contribution of shares operation meets all the requirements to benefit from the special 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 apply the special share exchange regime, the beneficiary entity must acquire shares that allow it to obtain the majority of voting rights and comply with the requirements of Article 80 of the LIS. The application of the regime requires that the operation does not have fraud or tax evasion as its main objective, and must be carried out for valid economic reasons. The reasons alleged by the taxpayer could be considered valid, although their classification depends on the facts. Regarding ITP and AJD, the restructuring operation is not subject to the corporate operations modality and is exempt in the other modalities. Regarding VAT, the operation shall not be subject to tax if carried out by a natural person without the status of entrepreneur or professional.

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