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V3608-20 17 December 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

A merger by absorption may qualify for the special regime if it complies with commercial law and has valid economic reasons

A company inquires whether its proposed merger by absorption with another entity within the same family group may apply the special regime of Corporate Income Tax. The DGT indicates that it must comply with commercial regulations and Article 76.1 of the LIS, and must not have tax advantage as its primary purpose.

The question raised

Question posed: 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, and whether the economic reasons are sufficient and valid.

The DGT's ruling

To apply the special regime, the transaction must be carried out within the commercial sphere pursuant to Law 3/2009 and comply with Article 76.1 of the LIS. The regime shall not apply if the primary objective is tax fraud or evasion, or if there are no valid economic reasons such as the restructuring or rationalization of activities. Reasons of optimization, rationalization of services, and unification of management could be considered valid, although their classification depends on the reality of the facts.

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