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V3639-20 28 December 2020 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · fusión por absorción

Merger by absorption may qualify for special Corporate Tax regime if valid economic reasons exist

A consulting company proposes a merger by absorption of three entities to unify its real estate activity. The DGT indicates that the operation could apply the special Corporate Tax regime if it meets commercial and economic requirements, and analyses its treatment regarding VAT, Transfer Tax, and Stamp Duty.

The question raised

Whether the special tax regime for mergers, demergers, asset contributions, exchange of securities, and change of registered office of a European Company or a European Cooperative Society from one Member State to another of the European Union is applicable to the proposed operation. Specifically:

The DGT's ruling

In Corporate Income Tax, the merger may qualify for the special regime if it is carried out within a commercial context and responds to valid economic restructuring motives, rather than a mere tax advantage. In VAT, non-applicability requires that the transferred elements constitute an autonomous economic unit. In Transfer Tax and Stamp Duty, restructuring operations are exempt. Transfer Tax on Legal Entities' Property shall not accrue if the circumstances of the second additional provision of the Corporate Income Tax Act are met.

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