Special tax deferral regime
Regulations: Articles 37.3 Law Personal Income Tax and 81 LIS
The special tax deferral regime provided for in articles 76 to 89 of Chapter VII of Title VII of the LIS is applicable to taxpayers of Personal Income Tax that they be the partners in the merger and spin-off operations as long as the requirements are met:
That they are residents in Spanish territory or in that of any other Member State of the European Union or in that of any other State provided that, in the latter case, the securities are representative of the share capital of an entity resident in Spanish territory.
That the operations have not involved entities domiciled or established in countries or territories classified as tax havens or that the income is obtained through them.
Valuation of assets received
When the above requirements are met, the capital gains that become evident on the occasion of the attribution to the partners of the merged or spun-off companies of shares or participations of the acquiring entity will not be integrated into the taxpayer's tax base.
The valuation and age of the shares received by virtue of the merger and spin-off operations must be carried out, for the purposes of future transfers, by the acquisition value and age of the shares delivered. Said valuation will be increased or decreased by the amount of the complementary monetary compensation delivered or received.
When the partner is considered entity under the income attribution regime , it will not be included in the tax base of the people or entities that are partners, heirs, community members or participants in said partner, the profit generated on the occasion of said attribution of values, provided that the tax regime established in Chapter VII of Title VII of the LIS applies to the operation or is carried out under the Directive 2009/133/EC of the Council, of 19 October, relating to the common tax regime applicable to mergers, divisions, partial divisions, contributions of assets and exchange of securities carried out between companies of different Member States and to the transfer of the registered office of a company SE or an SCE from one Member State to another, and the values received by the partner retain the same tax valuation as those exchanged.
Important: The special tax deferral regime will not be applied when the operation carried out has as its main objective fraud or tax evasion. In particular, the regime will not apply when the operation is not carried out for valid economic reasons, such as the restructuring or rationalization of the activities of the entities participating in the operation, but with the mere purpose of obtaining a tax advantage.
Loss of resident status in Spanish territory
Regulations: Art. 81.3 LIS
In the event that the partner who applied the special tax deferral regime loses the status of resident in Spanish territory, it will be included in the tax base of IRPF of the last tax period that must be declared by this tax, the difference between the market value of the shares or participations received and their value calculated as indicated above (that is, by the acquisition value and age of the shares delivered), unless the shares or participations are attached to a permanent establishment located in Spanish territory.
Postponement of debt payment due to change of residence to other States of the European Union or the European Economic Area
However, the payment of the resulting tax debt, when the partner acquires residence in a Member State of the European Union, or of the European Economic Area with which there is an effective exchange of tax information in the terms provided for in section 2 of the first Additional Provision of Law 36/2006, of November 29, on MediGeneral Taxes for the prevention of tax fraud, will be postponed by the Tax Administration at the request of the taxpayer until the date of the transfer to third parties of the affected shares or participations, resulting in application of the provisions of LGT and its implementing regulations, regarding the accrual of late payment interest and the constitution of guarantees for said postponement.
In relation to LGT see Law 58/2003, of December 17, General Tax.
Recovery of resident status in Spanish territory
If the taxpayer again acquires the status of taxpayer of Personal Income Tax without having transferred ownership of the shares or participations, he or she may request rectification of the self-assessment in order to obtain a refund of the amounts. entered corresponding to these capital gains. The rectification request may be submitted after the end of the declaration period corresponding to the first tax period in which a self-assessment of Personal Income Tax must be submitted.
Obligation to communicate
The carrying out of merger and spin-off operations to which the special tax deferral regime provided for in LIS applies must be communicated to the Tax Administration by the entity acquiring the operations. . However, if the acquiring entity is not resident in Spanish territory, said communication will be made by the transferring entity. And if neither the acquiring entity nor the transferring entity are residents in Spanish territory, it will be the partners, provided that they are residents in Spanish territory, who must present the communication.