Luis Prados Ramos



In the merger of companies, the corporate tax, the property transfer tax, the value added tax and the tax on the increase in the value of urban land may come into play. The application of each of the taxes rests on different criteria, which must be taken into account. The formalization of numerous merger operations prompts me to make a very brief reference to their tax treatment, as an ultra-quick guide:


In corporation tax, a merger generates in the transferring entity (absorbed) an income for the difference between the normal market value of the elements transferred and their book value, corrected, if applicable, by the tax adjustments derived from the transfer.

However, this general regime, in practice, constitutes the exception, since in most cases the companies involved in a merger process seek to avail themselves of the tax deferral regime, which consists of not paying for the merger, with the consideration that the elements received by the absorbing company are carried out with the value and seniority they had in the absorbed company.

Well, in corporate tax, the adoption of the special tax regime derives from the fact that the merger does not have fraud or tax evasion as its main reason, or is carried out for valid economic reasons, that is to say that the merger is only intended to achieve a tax advantage. On the contrary, when the cause of the merger is merely fiscal, regardless of any different economic reason, the special regime does not apply.


Within the scope of this tax, article 7 of Law 37/1192, declares not subject to the transmissions of a set of tangible and intangible assets, which, forming part of a business or professional heritage of the taxpayer, constitute an economic unit. Doubts that may arise regarding the concept of economic unit are determined when the transferor company (absorbed) constitutes a so-called patrimonial or mere property holding company, which is dedicated to leasing real estate.

It must be remembered that the leasing of real estate in accordance with tax regulations (article 27 LIRPF) is considered to constitute a business activity  when at least one person employed with a labor contract and full-time is usedeta.

This criterion has been in force since January 1, 2015, since previously it was necessary, in addition, to that in the development of the activity there is at least one premises exclusively dedicated to managing it.

In those cases in which, due to concurrent circumstances, there is no transfer of an economic unit, the transferred elements may be subject to value added tax., without prejudice to the possibility of waiving the VAT exemption, with the consequent reversal of taxpayer


Restructuring operations, including mergers, are declared not subject to the property transfer tax, in the form of corporate operations. And on the other hand, merger operations are declared exempt in the form of asset transfers and documented legal acts. With which it can be affirmed the absence of taxation in this tax of a merger operation.


Finally, in the tax on the increase in the value of urban land, non-subjection is declared, when the operation meets the requirements established to enjoy tax benefits in corporate tax, with the counterpart that the acquisition of the Items received by the absorbing company are carried out with the value and seniority they had in the absorbed company.


The "non-taxation" of the merger, either by exemption or non-subjection, depends on:

In the corporate tax of the existence of a valid economic reason.

In the value added tax that an economic unit is transmitted.

In the property transfer tax, documented legal acts and corporate operations, there will be no taxation in any case

In the capital gains tax of the previous "non-taxation" in the corporation tax.


I have decided to introduce this section, especially because of the queries that have been raised at the Notary, and thus give the image that a blog is an open and updatable form of expression.

This matter is regulated in article 81 of the Corporation Tax Law, which results very briefly, that if there is a valid economic reason for the merger and the circumstances of that provision exist, , the income resulting from the attribution of values of the acquiring entity is not included in the tax bases of the partners of the transferring companies, giving rise to the so-called deferral of the investment.

In the event that the special regime is not applied, the aforementioned operations would produce taxable income for the partners for the difference between the real value of the values received and the value of what was delivered.

Version updated on March 11, 2016.






  1. I have a question, what could be considered a valid economic reason for the merger to be exempt from the IS? In my particular case, I want to merge two heritage companies, to have everything in one. I am looking forward to your response. Thank you so much.

    1. "In corporate tax, a merger generates in the transferring entity (absorbed) an income for the difference between the normal market value of the transferred elements and their book value (...)

      If you are referring to this phrase, I think not. The transferring company is the absorbed one, which is extinguished for all legal, tax and accounting purposes. And the tax effects have the special treatment that the blog entry deals with.

      Anyway thanks for the precision.

  2. Good morning,
    I would very much like to have your qualified opinion.

    Assumption: Real estate is provided with a mortgage and the company assumes the debt. The regional administration intends to collect ITP on the amount of the debt because it considers that it is an independent act of the one taxed by OS

    But it is a contribution by the businessman to a company of assets. The rest of the requirements to benefit from the special regime of mergers and divisions are met.

    Do you think that the exemption in ITP also covers the act of assuming debts that occurs in this operation?

    Thank you very much in advance.
    Kind regards.

    1. That interpretation seems completely out of place to me, but it is true that some regional administrations try to rotate it by considering it two independent acts. My opinion has little value to solve your problem, it is a subject that has already been debated, with solid arguments in favor of non-taxation.

  3. Good morning, I would like to ask the following question:

    If I merge two limited companies by absorption and change the percentage of capital of the partners in the absorbing one, not because of the goods delivered, but because we all agree that some partners have a different participation greater than what theoretically would correspond to them for their contribution.

    Would this increase in the capital structure of the company be an increase in the equity of the renting partner? or it will be able to take advantage of the tax benefit in mergers.

    1. Well, it is a very doubtful and delicate issue, since at least there would be transfers between partners, if we cannot defend an exchange relationship, with the risk of questioning the valid economic reason for the merger. It may be better to do share transfers before or after the merger.

  4. Good morning, I would like, taking advantage of your kind knowledge and opinion.
    I have an asset in the name of my sole proprietorship and I am carrying out a merger so that my shares in the new company can be sold immediately after the merger has been executed. Before, I have to pay the tax on this patrimony to the Treasury, and the amount of money I need for this payment, a bank will lend to my future partners but mortgaging my asset, so that after the merger is completed, finish liquidating the total value of the property. active with the purchase of my shares in the new company.
    What problems could this transaction cause?

  5. The absorbed company pays taxes in the i.sociedades in the special regime for small companies and as tel it took advantage of the freedom of amortization with job creation. The absorbing company is not a small company with a turnover of more than 10 million. The question: The absorbing company is subrogated to the tax rights acquired from the absorbed company and, in this sense, can the absorbing company continue to apply the freedom of depreciation? Or, on the contrary, is such a right lost? Thank you so much.

    1. I believe that this system should be applied.

      This regime will be applied as long as the net amount of the turnover in the immediately preceding tax period is less than 10 million euros (This limit came into force as of 1/1/2011, until then it was 8 million ). The tax incentives contained in this special regime will be applicable in the three tax periods immediately and following the tax period in which the entities reach the aforementioned turnover of 10 million euros, provided that they have met the conditions to be considered as small in size both in that period and in the two tax periods prior to the latter.

      In any case, the person who will best answer you will be the Treasury.

  6. Good morning, we are immersed in a split. We are left in account 5532 an amount of about €200,000.00 since we are the split party. We will have to settle this amount with shares (we are an SL). These shares, being an increase in the equity of the partners, are they exempt?

    Thank you very much for your willingness to help.

    All the best

    1. I would need a little more information, but if everything they do is a consequence of the spin-off procedure, and there is a valid economic reason, there should be no increase in equity as it says, but as I pointed out, I would need a little more information.

      1. Thanks for your quick response.

        We are part of a company that has decided to split its 2 divisions, for this purpose we have already set up a company on which to split the division that we are in charge of. This division weighed down the benefits of the company, so in the agreement and for us to leave we were left with more assets than liabilities, which is why this account 5532 arises, which we later have to pass to shares. I don't know if this information is enough for you, I would appreciate the help again.

        All the best.

  7. Good morning,
    So, after the change in the law, are all companies that merge, are they included in the special regime?
    Except for the exceptions or you oppose

  8. Elaborating on how to benefit from the special tax regime, we understand that it is automatic and does not require:
    * Include it in the merge project
    * Report it to the Treasury

    Although there is no obligation, is it better to include it in the deed?

    Thank you

  9. Thanks for the reply.
    What is the treatment for the acquiring company of R&D deductions pending application from previous years in the acquired company? Can the acquiring company take advantage of them without limitations?


  10. Good afternoon Luis, your article is very interesting.

    In the event that two companies that are part of the same group, want to merge or one of them to acquire all the shares of the other, which option would be more beneficial from a tax point of view? Regarding the negative tax bases of the absorbed entity, would they be compensable by the absorbing entity?

    Thank you very much in advance.

    1. I think that the merger seems more advisable. I don't think there is any special treatment for the sale of shares (there is no change in values). The issue of negative bases is very difficult for me to give an opinion, theoretically if they can be compensated, but I understand that the Treasury looks at it a lot, to deny the valid economic reason. But honestly, I don't have much experience in those issues that are beyond our work.

      All the best

  11. Good morning,
    We have pending a merger operation between three national companies.
    Could you tell me what taxes it is subject to based on the special merger regime or the references for its justification?
    Is the provisions of Chapter VII of the Companies Law applicable to this type of merger?

    Thank you so much.

      1. Thank you so much.
        My question is related to the subject of VAT. The two absorbed companies can be considered as heritage companies, from what I understand they would be subject and exempt to the payment of VAT, with the possibility of waiving the exemption thereof.
        What legislation or regulation bases this?

        Thank you

        1. regarding exemption
          Article 20, one,**20 **rustic properties* **22nd second building transmission*** of Law 37/1992 of December 28, regulating said tax.

          Regarding investment of passive subject
          Article of the VAT Law 37/1992, in its wording given by Law 7/2012,

          1. Thanks a lot.
            Excuse me for abusing your knowledge, but I have so many doubts...
            In the case of the absorption of two heritage companies by another, should it continue to be considered as a merger of companies or as an acquisition of heritage elements?
            And, therefore, those established in Law 3/2009 in relation to mergers should be applied?
            Thanks a lot.

          2. I think it is a merger, but keep a close eye on the issue of the valid economic reason, since a difference must be made between the mercantile law 3/2009, where there is no limit to the merger due to the fact that they are holding companies, but something else It is that the Treasury considers that there is no economic reason, in which case, in addition to the consequences on corporate tax, they would have to monitor the issue of personal income tax for the partners. I think the VAT is less problematic, because if there is no economic unit, we always have the recourse of waiving the exemption and the investment of the VAT taxpayer.

  12. Thank you.
    How could we justify the existence of a valid economic reason?
    In the event that it is a merger of heritage companies between group companies, I understand that I would not be required to pay any tax, is that so?
    It is rare that the Treasury does not pay taxes for this type of operation.

    Thank you very much for everything.
    This topic is much more complicated than I thought.

    1. The only way would be through a binding consultation with the Treasury. And wait as long as they can take to respond. Or search the repertoire of queries and see if we fit into any identical case.

  13. Good morning,
    Although it has been a while since you last commented on this topic, I would appreciate your opinion on this assumption. It is a merger between two EU companies, none of them Spanish, and the absorbed company owns a property in Spain. I have doubts about what the taxation of the operation would be in Spain: If ITP-AJD or OS would have to be settled (I am not sure which would be), if they could be exempted by the 314 LMV, or if it depends on whether the merger operation can be accepted to the neutrality regime in each of the countries of the nationalities of the companies involved?
    Thank you very much for your attention.
    All the best.

    1. With the data you give me, it is difficult to answer, and without knowing the full background of the operation, I should not give an opinion at the risk of being able to mislead you.

    2. Completing the previous answer, and with all the reservations, from what I have explained to you, the only possible taxation in Spain, in my opinion, could be for VAT, although in the case of a merger the most normal thing is for the property to be within a business unit, and therefore exempt from VAT.

  14. Good morning,
    Sorry for the inconvenience but I wanted to know if you could help me. I have a pending merger. A is a company with economic activity and B is a patrimonial one (it is dedicated to renting). They want to merge due to restructuring of the group and because previously A obtained 100% of the shares because he remained the only partner. Can restructuring of this type be considered a valid economic reason?
    On the other hand, in the Balance of A I have the investment in the capital of B and also a cost overrun because it acquired shares of B with a share premium. I understand that this premium is more investment in B and therefore I have to give him the same treatment, right?
    Thank you and sorry for the inconvenience.

    1. The best thing is that we make an appointment and we can make an approach to the operation. From what you tell me, it is a simplified merger, in which many requirements are exempted. The subject of the economic motive, it is difficult for me to pronounce myself a priori, and because the tax decision is made by the Treasury. The only way to be sure about 100% is with a binding query, but this is a fairly frequent case and similar assumptions have been considered valid reasons.

      I'm at your disposal

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