The issue raised in the Resolution of the Central Economic-Administrative Court of April 22, 2024 concerns the controversial application of the FEAC regime provided for in Chapter VII of Title VII of the Corporate Tax Law.
In the case analyzed, the appellant carried out a non-monetary contribution of shares in favor of a Holding Company through a capital increase, which was subject to the aforementioned deferral regime.
However, after initiating an inspection procedure, the Tax Agency concluded that in the investigated case there were no valid economic reasons insofar as they used the Interposed Holding company exclusively to channel the dividends, thus taking advantage of the 95% exemption. provided for in article 21 of the Corporate Tax Law.
This fact led to the regularization of the capital gain by applying the anti-abuse clause provided for in article 89.2 of the LIS, with said gain being attributed to the seat of the natural person.
As a consequence of this, the Court's resolution confirms that in the event of a capital increase operation due to a non-monetary contribution of social shares to a Holding Company, a global analysis of the operation must be carried out in which the past and subsequent circumstances must be assessed. , following the jurisprudential line of the Supreme Court.
In situations in which there is a tax motivation, this should not be the main or preponderant one since its consequence will be the non-application of the FEAC regime. For this reason, the TEAC considers that in the event of an operation such as the one analyzed, in which reasons such as business simplification, restructuring or strengthening of economic capacity are referred to, the purpose of the standard is not met, since a fact The important objective that the TEAC focuses on is the analysis of the destination of the funds that the Holding Company receives via dividends.
In the case in question, said funds were allocated to the acquisition of elements not used for business purposes, proving to be plausible evidence of the tax advantage of the operation since they result in a direct benefit to the contributing individual. On the contrary, to the extent that the funds received via dividends were used by the intermediary company, providing additional economic activity to the business group, the application of the anti-abuse clause provided for by the FEAC Regime would be difficult to discuss.
Finally, the TEAC separates itself from the criteria followed by the General Directorate of Taxes with regard to the consideration of the deferral of taxation under the FEAC regime as inherent to it and therefore not capable of giving rise to regularization by itself. , analyzing exclusively the element of deferral, as it is something inseparable from the operation itself under the FEAC regime. In this sense, the TEAC makes a different interpretation of the DGT criterion to the extent that when the deferral itself is presented as an artificial act, it must be considered an illegitimate advantage and be eliminated through regularization.