Newly created companies may apply the 15% reduced rate without prior transfer of activity

Access to the reduced tax rate of 15% in Corporate Tax (IS) is a key benefit for the growth of small companies. However, the interpretation of when an entity is considered "newly created" has raised doubts in scenarios where partners were already performing the activity individually or through other structures.

What the DGT has resolved

The ruling analyzes whether an entity can be qualified as newly created to apply the reduced rate provided for in Article 29.1 of Law 27/2014, even when the partner with a stake exceeding 50% was already performing the economic activity previously. The Dirección General de Tributos (DGT) determines that the condition of being newly created focuses on the constitution of the legal entity itself and not on the non-existence of previous activity by its partners.

The criteria establish that, for the entity to access this tax rate, it must comply with the legal requirements of:

• Having the status of a small-scale entity.
• Carrying out an economic activity.
• Not being a patrimonial entity.

The DGT confirms that the fact that the partner has previously carried out the activity does not undermine the nature of the company as a newly created entity, provided that the company itself is new and complies with current regulations.

What this means for you

If you are incorporating a company to develop an activity that you were already performing professionally or individually, this criterion provides you with legal certainty. You do not need a formal transfer of the partner's economic activity to the company to benefit from the 15% rate in the first financial years.

This avoids the need to carry out transfer operations that could have other tax implications, allowing the company to be born directly with the reduced taxation regime, as long as the requirements for economic activity and the size of the entity are maintained.

What should be done

It is fundamental to verify that the company strictly complies with the limits of Law 27/2014 to be considered small-scale. Although the partner's previous activity is not an impediment, the company structure must be oriented toward economic activity and not merely the management of assets to avoid losing this benefit.

It is recommended to assess the specific situation of the company and its capital composition to ensure full compliance with the requirements of the Corporate Tax Law.