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A query was raised regarding whether a merger by absorption and a transfer of a business undertaking can qualify for the special Corporate Income Tax regime. The Directorate General for Taxes (DGT) ruled that this is possible provided that commercial and tax requirements are met, and the transaction is driven by valid economic motives rather than solely for tax advantages.
Question raised 1) Whether the aforementioned operation may qualify for the special tax regime of Chapter VIII of Title VII of the Recast Text of the Corporate Income Tax Law, approved by Royal Legislative Decree 4/2004, of March 5.
For the merger, it must be carried out under the Structural Changes Law and comply with Article 83.1 of the TRLIS. In the contribution of a business line, the assets must constitute an autonomous economic unit that allows the operation to be carried out in the acquiring company. The special regime shall not apply if the primary objective is tax fraud or evasion, or if it lacks valid economic reasons. In Personal Income Tax (IRPF), if the special regime applies, the partners do not recognize income from the exchange of securities, and the new securities retain the value and acquisition date of the previous ones.
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