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V3105-14 18 November 2014 · SG de Fiscalidad Internacional Criterion in force
IRNR · stak

Share exchange in Spanish society via Dutch STAK may be subject to IRPNR and ITP/AJD

A Belgian resident couple asks whether exchanging shares in a Spanish company for certificates of a Dutch STAK has tax implications. The DGT states the transaction may be subject to IRPNR on patrimonial gain and ITP/AJD due to the STAK's acquisition of shares.

The question raised

Whether there is a transfer for tax purposes in the act of exchanging interests in the Spanish company for the "certificates" issued by the Dutch STAK. Specifically, the tax implications for the applicants regarding Non-Resident Income Tax and the Transfer Tax and Stamp Duty (ITP and AJD).

The DGT's ruling

Regarding ITP/AJD, the acquisition of interests in STAK is not subject to the tax as it is a primary market, but the acquisition of shares by STAK in exchange for the interests will be subject to tax on the transfer of real estate if the requirements of Article 108 of the LMV are met. Regarding IRPNR, the transaction is classified as a capital gain subject to taxation in Spain according to the Spanish-Belgian Convention and the TRLIRNR, as it involves the transfer of interests in a resident entity and due to the substantial participation of the applicants.

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