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A Swiss company asked whether gains from transferring shares in a Spanish mining company are tax-exempt in Spain under the Switzerland-Spain double taxation treaty. The DGT concludes that since the mine is an essential component of the company's industrial activity, the treaty exemption applies and no capital gain is taxable in Spain.
Question raised 1.- Interpretation to be given to the requirement that "the company uses the real estate for its own industrial activity" in relation to the exclusion contained in Article 13.3 of the Convention for the Avoidance of Double Taxation between Spain and Switzerland.
The exclusion under the Spanish-Swiss Convention allows the transfer of shares to be non-taxable in Spain if the company uses the real estate for its own industrial activity. In the case of a mining activity, the deposit and mineral resources constitute essential components for the development of the extraction and exploitation activity. Therefore, the capital gains derived from the transfer of said shares should not be subject to taxation in Spain through the application of the Convention.
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