{"id":8740,"date":"2024-11-04T13:08:18","date_gmt":"2024-11-04T11:08:18","guid":{"rendered":"https:\/\/merac.es\/?p=8740"},"modified":"2024-11-04T13:14:34","modified_gmt":"2024-11-04T11:14:34","slug":"escision-de-sociedades","status":"publish","type":"post","link":"https:\/\/merac.es\/en\/escision-de-sociedades\/","title":{"rendered":"Total subjective demergers: Can I split a company into different companies and assign one to each shareholder?"},"content":{"rendered":"

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One of the questions we are most often asked in our work is the possibility of separating the activities and assets that are unified within the same company<\/strong> with the aim, on the one hand, of minimising risks and protecting the different business activities and business assets and, on the other hand and in the vast majority of cases, with the aim of dividing those companies among the different shareholders<\/strong>, either because there are disagreements or conflicts between them or simply because they want a different future for the company.<\/p>\n

For this reason, one of the options considered for carrying out this separation is a demerger of the company. At Merac, as lawyers in M\u00e1laga<\/a>, we tell you everything you need to know<\/p>\n

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    Spanish regulations<\/strong><\/h2>\n<\/li>\n<\/ol>\n

    As we have already discussed in previous articles, a demerger is an operation by which\u00a0all or part of the assets of a company are divided<\/u> in order to transfer<\/strong>without liquidation, the\u00a0resulting share to other pre-existing companies or companies created for this purpose<\/strong>.<\/p>\n

    The demerger operation, as indicated in previous posts<\/a>, has a very beneficial tax regime<\/strong> (Special tax regime for mergers, demergers, contributions of assets and share exchanges<\/em> \"FEAC\" - Chapter VII of Title VII of the Corporate Income Tax Law<\/em>), which requires for its application, among other requirements, that<\/strong>which the demerger operation be carried out for a<\/strong> valid economic reason<\/strong> and not simply for the purpose of tax fraud or evasion.<\/p>\n

    However, several types of demerger must be distinguished under commercial and tax regulations. If you are not clear about the types of demergers, you can always rely on a tax advisor lawyer<\/a> to solve your problems.<\/p>\n

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      A) TOTAL DEMERGER<\/strong><\/h3>\n<\/li>\n<\/ol>\n

      Thus, the\u00a0total division<\/strong> operation may mean that\u00a0all the shareholders of the pre-existing company become shareholders in each and every one of the beneficiary companies<\/strong> (maintaining proportionality), both in qualitative and quantitative terms; this may be altered if some shareholders choose to participate in only one of the beneficiary entities, which implies a lack of qualitative proportionality.<\/em><\/p>\n

      However, in the latter case, when the allocation to the shareholders in the beneficiary companies is not proportional to their holding in the demerged company, which is known as a total subjective demerger,<\/strong> article 76.2.2 of the Corporate Income Tax Law requires that, in addition to there being a valid economic reason, the assets transferred to the beneficiary companies constitute lines of business<\/strong>.<\/p>\n

      The diagram representing the partial demerger operation is as follows:<\/p>\n