The failure to provide a valid economic reason for the restructuring of a family-owned business group

The tax benefit is not a valid economic motive for the restructuring and creation of the holding company, but could be indicative of a tax avoidance strategy.

The National Court (AN), in its ruling of October 10, 2023 and on the occasion of the appeal No. 047/2020, ratifies the criterion followed by the Central Economic Administrative Court (TEAC) and the Spanish Tax Agency (AEAT), determining that capital gains derived from capital increases are subject to tax in accordance with the Personal Income Tax Law.

The appeal took place in the context of determining the legality of the restructuring with the interposition of a holding company between the individual holder of the shares and the holding company, with the objective of allowing a more optimal and efficient business management, derived from the tax savings due to the restructuring, as a valid economic reason.

To this effect, the AEAT sustains that the purpose of the operation is merely based on taxation, so it determined that the restructuring had a motive not adjusted towards the rationalization or restructuring of the activities of the entities involved, as regulated by Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares carried out between companies of different Member States.

The AN shares the criterion of the AEAT, in the sense that the restructuring and creation of the asset-holding company are not based on a valid economic motive, ruling out the tax benefit as a legitimate motive for this purpose.

Finally, the AN notes that the restructuring presented, for the above-mentioned reason, could constitute a tax evasion strategy, without there actually being a comprehensive restructuring process.

See Sentencia de fecha 10 de octubre de 2023..