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V3362-15 2 November 2015 · SG de Impuestos sobre el Consumo Criterion in force
IVA · transmisión de valores

Share transfers are exempt from VAT unless intended to evade tax on property transfers

A query was raised regarding whether the transfer of shares in a company holding real estate is exempt from VAT or if the anti-avoidance clause under Article 108 of the LMV applies. The DGT ruled that the transfer of securities is exempt, unless it is demonstrated that the intention is to evade tax on the real estate through the transfer of securities.

The question raised

Application of Article 108 of the Securities Market Law.

The DGT's ruling

The transfer of securities is exempt from VAT and ITPAJD, unless it is intended to evade the payment of taxes that would apply to the transfer of real estate owned by the represented entities. For the exception to apply, there must be a transfer in the secondary market of securities not admitted to official trading and an intention to evade. The Administration must prove the intent to evade, although there are cases of iuris tantum presumption if objective requirements of control or the contribution of real estate not used for business activity are met. In this specific case, the exception does not appear to apply because the real estate must be understood as being used for business activity.

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