Below we explain the article 108 Securities Market Law about the acquisition of owning companies of real estate:
First, it should be recalled that Article 108 Law Securities Market contains an anti-elusoria standard, which is designed to equalize the tax treatment of the transfer of property instrumentalized by transfer of shares of companies, to transfers of property made by individuals.
As a general rule, the transfer of securities, admitted or not on an official secondary market shall be exempt from VAT and ITPAJD.
However, the rule in Article 108 LMV, unexceptional this general criterion, submitting to taxation by the ITP (in Catalunya to 7%) the acquisition of shares in companies (on the taxable only property values and not the all active) when the following are met:
- That more of the 50 by 100 of its asset is constituted by real estate (real valuation of all assets).
- That is acquired directly or indirectly, more than 50 by 100 of the share capital. They will also be taxing all the participation increases that are obtained from 50 to 100%.
To date, most of the doctrine seemed to have quite defined the circumstances in which it was implementing this special rule: transfer of securities, capital increases, share buyback, ...
However, in recent months have come to light two consultations, one of the Directorate General of Taxes, Ministry of Finance and one from the General Directorate of Tributs the Department of Economy and Hisenda of the Generalitat de Catalunya, which extend the application rate of this anti-avoidance rule (Article 108 LMV) two
In particular, when the acquisition of a percentage higher than 50 by 100 in some companies owning whose assets are mainly represented by immovable property, is obtained as a result of:
A) A capital reductions with refund of contributions (V0732-08).
DGT equates commercial operation "capital reductions with refund aportaciones "consisting of the mere reduction by eliminating the number of shares and which, therefore, the capital reduction is carried out immediately by the mere removal of the same, with"capital reduction operation to acquire treasury shares and subsequent cancellation of the same ", Of course this does require a prior acquisition of own shares by the company that acquires treasury for later transmission or amortization, these other cases regulated by art. 108 LMV.
B) A host exchange transaction values the special income tax regime (Chapter VIII Title VII) (See 68E / 07)
The Directorate General of Taxes, states that this type of operations must be subsumed within the broad concept introduced by the legislator in the same art. 108 LMV of "any other form", By linking business operations that involve the application of anti-avoidance rule, regardless of whether the same results would apply the special regime of Chapter VIII Title VII of the Corporate Income Tax Law.
These interpretations made by the tax authorities prevent us from what will be the criterion of Inspection regarding such operations, both those who have already been made to those made from this moment, what will fit only expect the protection of the courts, everything that can be tortuous that path.
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Marcos Jimenez de Parga