El artículo 89.2 de la LIS como paradigma de la inseguridad jurídica que rige las operaciones de reestructuración empresarial: RRTEAC de 22 de abril de 2024 (6448/2022 y 6452/2022) y 27 de mayo de 2024 (6513/2022 y 6550/2022)

Abstract

The Central Tax Tribunal has issued several rulings on the application of article 89.2 of the Spanish Corporate Income Tax («CIT»)  Law (which transposed Article 15.1(a) of Directive 2009/133) to a contribution of shares from an active company to a holding  company. It has held that there were no business reasons for the contribution other than being able to apply a tax advantage (the  participation exemption under article 21 of the CIT Law to the dividends that the holding company would receive in the future,  including earnings that the distributing company made before the contribution) and that, therefore, article 89.2 should apply. Also,  contrary to what the General Directorate for Taxation has previously stated, the Central Tax Tribunal held that in order to remedy the  situation, the deferral of taxation under regime of tax neutrality could be denied and the capital gains earned by the  shareholders from the share contribution in the part corresponding to earnings made before the contribution, could be taxed when  the dividends were distributed to the holding company, establishing any adjustments needed to avoid double taxation. This  interpretation which tries to align the application of the article with the principle of proportionality, has created a great deal of  uncertainty about the effects of article 89.2 of the CIT Law.