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V2899-20 24 September 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Value exchange and non-cash contributions may apply under special regime if legal and economic conditions met

A natural person enquires whether contributions of shares from two companies to a new holding company may qualify for the special merger and reorganisation regime. The DGT states this is possible provided voting rights majority, shareholding percentages and valid economic motives are met.

The question raised

Whether the described operation complies with all legal requirements, including the valid economic reason, and therefore may be subject to the special regime for mergers, demergers, contributions of assets, exchange of securities, and change of registered office of a European Company or a European Cooperative Society from one Member State to another within the European Union, as provided in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.

The DGT's ruling

For the exchange of securities, the acquiring entity must obtain the majority of voting rights and comply with the requirements of Article 80 of the LIS. In non-monetary contributions, the receiving entity must be a resident in Spain and the contributor must maintain a shareholding of at least 5% in the equity. Finally, the operation must not have the primary objective of tax fraud or evasion, requiring valid economic reasons such as the rationalization of activities.

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