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V3279-20 4 November 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

A absorption merger may qualify for special regime if commercial and economic requirements are met

Societies A and B inquire whether their absorption merger may apply to the special regime under the LIS based on valid economic grounds. The DGT states that such application is possible if commercial rules and Article 76.1 of the LIS are met, provided the merger is not primarily aimed at fraud or tax advantage.

The question raised

Whether the described merger transaction may benefit from the special tax regime of Chapter VII of Title VII of the Corporate Income Tax Law, fulfilling the requirement of being based on a valid economic reason, as required by Art. 89.2.

The DGT's ruling

To benefit from the special regime, the merger must be carried out within the commercial sphere pursuant to Law 3/2009 and comply with Art. 76.1 of the LIS. Furthermore, the transaction must not have fraud or tax evasion as its primary objective, and must be carried out for valid economic reasons such as the restructuring or rationalization of activities. Reasons of structural adjustment and cost savings could be considered valid, although their classification depends on the verification of the facts and circumstances of the transaction.

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