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V5404-16 21 December 2016 · SG de Impuestos sobre las Personas Jurídicas Criterion in force
IS · aportación no dineraria

Subsequent sale of shares may influence the determination of the economic motives behind a contribution

A query was raised regarding whether a future sale of shares inherently invalidates the economic motives of a non-monetary contribution. The DGT ruled that such a sale could influence the determination of the transaction's primary purpose if its objective is to obtain a tax advantage.

The question raised

Whether said statement means that any future sale necessarily prejudices the valid economic motives of the non-monetary contribution, or whether the specific circumstances of said sale must be taken into account, and in particular, whether the sale benefits or does not benefit the future development of company X's activity.

The DGT's ruling

The subsequent sale of the contributed shares could influence the determination of whether the operation's primary objective is tax fraud or evasion. If the transfer does not benefit the development of the company's activity, but instead seeks a tax advantage in the treatment of the capital gain, the special regime might not apply. The judgment regarding the purpose of the operation shall be made by considering the totality of the prior, simultaneous, and subsequent circumstances.

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