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A Spanish holding company asks whether the absorption of an Austrian and a Spanish intermediate company may benefit from the special merger regime. The DGT states that if commercial and fiscal requirements are met, the transaction could qualify for such regime, provided there are valid economic reasons.
Question raised: Whether the described corporate transaction can qualify for the special tax regime of Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax (LIS).
If the transaction is carried out commercially under Law 3/2009 and complies with the LIS, it could qualify for the special merger regime. The income of the absorbed Spanish entity would not be included in the tax base pursuant to Article 77 of the LIS. Regarding the entity resident in Austria, capital gains cannot be taxed in Spain according to the Double Taxation Convention between Spain and Austria. To avoid the application of Article 89.2 of the LIS, the transaction must respond to valid economic reasons and not to a mere purpose of tax advantage.
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