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V3239-20 29 October 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Absorption merger may qualify for special tax regime and be exempt from ITPAJD under certain conditions

A company aims to absorb two others to streamline management. The DGT assesses whether the operation meets the requirements for the special merger regime under the Corporate Income Tax and its treatment under ITPAJD.

The question raised

Question raised 1) Whether the described transaction may qualify for the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.

The DGT's ruling

The transaction may qualify for the special Corporate Income Tax regime if carried out under the Structural Changes Law and complies with Article 76.1 of the Corporate Income Tax Law, provided its primary purpose is not tax fraud or evasion. Regarding the Transfer Tax on the Acquisition of Real Estate Rights, the merger is considered a restructuring operation, which entails non-applicability to the corporate operations modality and exemption from other modalities. However, if the transfer of securities seeks to circumvent real estate taxes, it could be taxed as a transfer of real estate.

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