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A company has inquired whether its total spin-off project can qualify for the special tax regime under Corporate Income Tax. The DGT indicates that this is possible provided that commercial requirements are met and the primary purpose of the operation is not to obtain a tax advantage.
Question raised 1) Whether the described operation may qualify for the tax regime provided for in Chapter VII of Title VII of Law 27/2014, of November 27, on Corporate Income Tax.
To apply the special regime for total spin-off, the operation must comply with the commercial requirements of Law 3/2009 and those of Article 76.2.1ºa) of the LIS. If the partners receive shares in proportion to their previous holding, it is not necessary for the assets to constitute business lines. However, pursuant to Article 89.2 of the LIS, the regime shall not apply if the primary objective is tax fraud or evasion, or if it lacks valid economic reasons. Reasons such as cost rationalization or facilitating succession may be valid, but if the operation seeks solely to reduce the tax burden of a future sale of shares, it shall lack economic motivation.
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