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V3758-15 26 November 2015 · SG de Impuestos Patrimoniales, Tasas y Precios Públicos Criterion in force
ITPAJD · transmisión de valores

Transfer of securities may be taxed as real estate if there is intent to evade tax

A query was raised regarding whether the sale of a shareholding of less than 50% in a company is exempt from ITPAJD (Transfer Tax). The DGT explains that the general exemption may be lost if the intention is to evade real estate transfer tax, although it cannot assess the specific case due to a lack of data regarding the company's assets.

The question raised

Whether the sale of said shares is exempt from the payment of the transfer tax pursuant to Article 108 of Law 24/1928, of July 28, on the Securities Market.

The DGT's ruling

The transfer of securities is exempt from ITPAJD, unless it is intended to evade the tax that would apply to the transfer of the entity's real estate. Obtaining control of the company is only one of the scenarios where such evasion is presumed. If there is no control but there is an intention to evade the tax, the transfer shall be taxed as an onerous transfer of real estate.

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