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V2828-20 21 September 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Possibility of applying special share exchange or merger regime under LIS and conditions

A company asks whether the contribution of shares from another company to carry out a capital increase may qualify for the special share exchange or merger regime. The DGT states that this is possible if legal requirements are met and economic justifications are valid.

The question raised

1. In the event of a capital increase in company A by contributing all shares of company B, could this transaction benefit from the special regime regulated in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax, resulting in a deferral in Personal Income Tax, Corporate Income Tax, and Local Taxes, as well as an exemption from regional taxes?

The DGT's ruling

For the exchange of securities, the transaction must allow for the acquisition of the majority of voting rights and comply with Article 80.1 of the LIS. In the case of a merger, it must be carried out under Law 3/2009 and comply with Article 76.1 of the LIS. In both cases, the transaction cannot have the primary objective of tax fraud or evasion, requiring valid economic reasons pursuant to Article 89.2 of the LIS. Regarding the IIVTNU, non-liability in mergers depends on the occurrence of the circumstances set forth in the second additional provision of the LIS.

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