ITP: Criterion for acquisition of control of an entity with real estate

The TS considers that the tax base of the ITP in the takeover of a company with more than half of its assets formed by real estate is calculated considering the totality of the participation that the acquirer happens to have with the operation, and must therefore include the participation that the acquirer already held before in the company.

A natural person who holds 39% of a company, whose assets are constituted only by real estate, acquires by public deed an additional 13%, with what happens to have 52%.

Submits self-assessment by ITP, TPO modality, declaring the transaction subject and exempt by application of the LITP, which provides for the exemption of securities transfers, admitted or not to trading in an official secondary market.Submits self-assessment by ITP, TPO modality, declaring the transaction subject and exempt by application of the LITP, which provides for the exemption of securities transfers, admitted or not to trading in an official secondary market.

However, the Autonomous Administration denies the exemption, considering that the operation of sale is taxed as an onerous transfer of real estate, since the assets of the company are constituted only by assets of that nature. As a result, a provisional liquidation turns it into the taxable base of the tax the total percentage of participation that the obligor happens to have at the time of obtaining control of the company.

Not being satisfied the interested, submits a claim before the TEAR, alleging that the taxable base of the tax corresponds only to the percentage that acquires in the operation, that is, 13%. This claim is rejected, affirming this body that the correct interpretation of the aforementioned precepts requires taking, as the taxable basis of the tax, the proportional part of the total value of the property that corresponds to the percentage of share capital that has been reached with the acquisition of those values.

The natural person then presents a contentious-administrative appeal before the Supreme Court, which pronounces sentence giving him the reason. In front of her the autonomic Administration interposes resource of cassation, identifying the TS like norm to interpret the art. 108.2 Law 24/1988.

According to this, the exemption of ITP is exempted from transfers of securities representing parts of the capital stock or assets of companies whose assets are constituted at least 50% by real estate, provided that as a result of said transfer the acquirer obtains ownership. total of the patrimony or, at least, a percentage that allows him to exert the control of the society. This forecast is intended to avoid the avoidance of the tax that should be paid if the real estate is acquired directly and not through a transfer of shares.

The Chamber determines that, as of 1-12-2006, the date of entry into force of L 36/2006, the taxable base of these operations must be fixed based on the total percentage of participation that is going to be enjoyed at the moment. in which the control of the company whose capital is acquired is obtained, independently of the fact that before that moment the purchaser already had ownership of part of the shares of the entity.

STS Room 3 of December 18, 2018. EDJ 2018/663418