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V3304-23 26 December 2023 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Share swap may apply fiscal neutrality if legal requirements are met and valid economic reasons exist

A shareholder proposes a share swap to establish a new company (Newco) and subsequently distribute dividends. The DGT states that the fiscal neutrality regime applies if legal requirements are fulfilled and the primary objective is not fiscal advantage.

The question raised

Whether the reasons indicated for the exchange of securities operation are considered valid economic reasons for the purpose of fully applying the special tax regime provided for in Article 80 of the Corporate Income Tax Law.

The DGT's ruling

The tax neutrality regime for the exchange of securities shall apply if Newco acquires the majority of voting rights and the requirements of Article 80 of the LIS are met. The dividends received by Newco from entity T may benefit from the exemption under Article 21 of the LIS, provided that the minimum participation and holding period requirements are met. In this case, the acquisition date of the holdings is maintained by subrogation. There shall be no withholding obligation on said dividends if the requirements for the exemption are met.

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