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A company inquired whether a merger by absorption involving three companies owned by the same sole shareholder could qualify for the special merger regime. The DGT ruled that tax neutrality can be applied even in the absence of capital increases or the allocation of securities, provided that commercial requirements are met and the transaction is not carried out for fraudulent purposes.
Question posed: Whether it is appropriate for the merger in question to qualify for the special regime for mergers, demergers, exchange of securities, and contributions of assets, established in Chapter VII of Title VII of the LIS, both regarding its subsumption in the catalogue of operations of Article 76 of said law and regarding the sufficiency of the economic motives supporting it, which will be substantiated in the following section.
In mergers between companies wholly owned by the same shareholder, the operation may apply the tax neutrality regime even if there is no attribution of values to the shareholder nor an increase in capital in the absorbing company. This is possible because the shareholder's equity position does not change substantially when the value of their participation in the absorbing company increases. However, the regime shall not apply if the primary objective of the restructuring is tax fraud or evasion.
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