Pillar Two in Spain: key points on the new Top-up Tax for large groups
The transposition in Spain of Council Directive (EU) 2022/2523 of 15 December 2022, on ensuring a global minimum level of taxation for multinational enterprise groups
In 2020, a public limited company adopted by majority vote a resolution to convert into a limited liability company. In 2023, also by majority resolution, it sought to annul the previous transformation, already filed, on the grounds that, following the first transformation resolution, one of the shareholders exercised his right of separation, which would jeopardize the viability of the company, according to an independent expert’s valuation report.
Following the negative classification of registration made by the Commercial Register of the second resolution, the DGSFP heard the appeal and confirmed the impossibility of registering the second resolution.
The new resolution constitutes a modification and not a reinstatement of the previous situation, which has important material and formal consequences, implying that the company cannot act as if the first resolution had not existed, so that the effects of the new agreement can only be ex nunc, not producing a reinstatement but a modification that will not have retroactive effects in the legal sphere of shareholders and third parties.
Likewise, the adoption of the new resolution must meet the regulatory requirements to produce the effects of transformation into a different type of company, which in this case are (i) the resolution approving the transformation balance sheet; (ii) the independent expert’s report on the non-cash assets; (iii) publication or notification of the transformation resolution; (iv) the identity of the shareholders who exercise their right of separation in a timely manner. In addition, the Mercantile Registry and the DGSJFP point out that the new resolution must comply with the regulatory change that occurred pursuant to Real Decreto-ley 5/2023, de 28 de junio, which repealed the regulations in force for the first agreement (Law 3/2009, of 3 April, on structural modifications of commercial companies).
It is reiterated that a company may rectify, withdraw, repent or renounce a previously adopted resolution, but in this procedure, it must respect the rules in force and may not render ineffective those that have already taken place and effect.
The transposition in Spain of Council Directive (EU) 2022/2523 of 15 December 2022, on ensuring a global minimum level of taxation for multinational enterprise groups
In many commercial negotiations, M&A transactions or due diligence processes, the non-disclosure agreement (or NDA) is signed as a preliminary formality. However, its effectiveness depends
When a foreign company wants to operate on a stable basis in Spain, one of the first decisions is choosing the appropriate structure: incorporating a