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V4060-16 22 September 2016 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · aportación de activos

Requirements for applying the special regime of asset contribution (Art. 87 and 89.2 LIS)

A Spanish resident entity asks whether the transfer of a business to another company can qualify for the special regime of asset contribution. The DGT states that the requirements of participation and residence are met, provided the operation is not primarily aimed at obtaining a fiscal advantage.

The question raised

Question raised 1) Whether the transaction described, by virtue of which entity T transfers the business of DM to S, could qualify for the special tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.

The DGT's ruling

To apply the special regime for the contribution of assets pursuant to Article 87 of the LIS, the receiving entity must be a resident in Spain and the contributing entity must retain at least 5% of the receiving entity's equity. The transaction must not have the primary objective of tax fraud or evasion, requiring valid economic reasons such as the restructuring or rationalization of activities. In the event that the transaction is internal within a tax consolidation group, the income and capital gains generated must be eliminated pursuant to Article 64 of the LIS.

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