Purchase of company shares with mining rights may be exempt from ITPAJD

The acquisition of shares in companies whose main assets include mining rights presents a complex scenario regarding Transfer Tax and Stamp Duty (ITPAJD). The nature of these rights determines the application of specific exemptions in the transfer of securities.

What the DGT has ruled

The Dirección General de Tributos (DGT) has determined that the transfer of securities is, as a general rule, exempt from ITPAJD. However, this exemption has a critical limit: it will not be applicable if the operation aims to evade the tax levied on the real estate owned by the entity.

Since mining rights are legally classified as real estate, the Administration monitors whether the purchase of shares is a vehicle to avoid paying tax on the underlying property. The criterion establishes that the existence of an intent to evade is a matter of fact that must be proven by the Tax Administration, except in cases where the regulations establish a legal presumption that reverses the burden of proof.

What it means for you

If your entity or investment group is interested in acquiring shares of a company that holds mining rights, the operation could benefit from the ITPAJD exemption. However, this tax advantage is neither automatic nor absolute.

The relevance of this criterion lies in the classification of mining rights as real estate. This implies that the transaction structure will be analyzed to verify whether the real purpose is the transfer of mining property through the purchase of shares, thereby avoiding the corresponding real estate tax.

What should be done

In operations of this type, it is necessary to conduct a detailed analysis of the economic substance of the transaction. The composition of the assets of the company being acquired and the motivation for the operation must be evaluated to mitigate risks in the event of a possible inspection.

It is fundamental to document the purpose of the acquisition of the shares, ensuring that the operation responds to legitimate business reasons and not to a tax evasion strategy. Each case requires a technical assessment of the applicable regulations, including the TRLITPAJD and the Securities Market Law.