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V3975-16 20 September 2016 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · canje de valores

Exchange regime applicable if LIS requirements and valid economic reasons met

The consultant asks whether a share contribution can qualify for the special share exchange regime to avoid including income in the tax base. The DGT states that this is possible if the beneficiary acquires a majority of voting rights and legal and economic conditions are met.

The question raised

Question posed: Whether the described share contribution operations may qualify for the special regime for mergers, demergers, contribution of assets, exchange of shares, and change of registered office of a European Company or European Cooperative Society from one Member State to another within the European Union, as set forth in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax, and, therefore, whether the income arising from exchanges of shares and/or non-monetary contributions shall not be included in the taxable base of Corporate Income Tax, Personal Income Tax, or Non-Resident Income Tax.

The DGT's ruling

To apply the special regime for exchange of shares, the beneficiary entity must acquire shares that allow it to obtain the majority of voting rights. The requirements of Article 80 of the LIS must be met, including the residence of the shareholders and the residence of the acquiring entity. Furthermore, the operation must not have the primary objective of tax fraud or evasion, and must respond to valid economic motives such as restructuring or the rationalization of activities.

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