Spain’s TEAC Limits FEAC Tax Adjustments to Abusive Tax Benefits Actually Realised

Spain’s Central Economic-Administrative Tribunal (TEAC) has clarified that an abusive corporate restructuring does not automatically justify taxing all deferred capital gains. Any tax adjustment must be proportionate to the abusive tax advantage actually obtained and recognised in the period in which that advantage materialises.

In its decision of 8 October 2026 (Case No. 00/00417/2023), Spain’s Central Economic-Administrative Tribunal (TEAC) addressed the application of the anti-abuse provision under Article 89.2 of the Spanish Corporate Income Tax Law (LIS) to the special tax-neutral restructuring regime, commonly known in Spain as the FEAC regime.

The decision is particularly relevant to Spanish holding company structures, as it clarifies the circumstances in which deferred capital gains may be brought into taxation following a restructuring considered abusive by the Spanish tax authorities.

The case concerned a corporate restructuring carried out in 2015, in which an individual transferred shareholdings to a newly incorporated holding company through transactions qualifying for the FEAC regime.

Following the restructuring, one of the operating companies distributed dividends to the holding company, which invested the proceeds primarily in financial investment funds.

The Spanish Tax Inspectorate concluded that the restructuring pursued an improper tax advantage and assessed the previously deferred capital gains under the individual’s 2015 Personal Income Tax (IRPF).

The TEAC rejected that assessment as originally issued.

Under Article 89.2 LIS, the consequences of disapplying the FEAC regime must be limited to eliminating the abusive tax advantage actually obtained. A finding of abuse does not, in itself, justify the automatic taxation of the entire deferred capital gain.

The Tribunal also distinguished between the transactions examined. In relation to a non-cash contribution, it found that the Tax Inspectorate had failed to identify a sufficiently substantiated abusive tax advantage. In the case of the share-for-share exchange, however, it accepted the existence of abuse while restricting the scope of the resulting tax adjustment.

A central aspect of the decision concerns the timing and quantification of the abusive tax advantage.

Where the abusive purpose of a restructuring is to transfer profits previously generated by an operating company to a holding company, thereby avoiding taxation that would otherwise arise at the individual shareholder level, the advantage materialises when those profits become available to the holding company, generally through dividend distributions.

Consequently, the corresponding adjustment must be attributed to the tax periods in which that advantage materialises, rather than automatically to the year of the original share contribution.

The adjustment is confined to profits generated before the restructuring, including profits arising from transactions already completed whose recognition was imminent and foreseeable at the time. As a general rule, profits generated through subsequent business activity fall outside that scope.

For these purposes, the TEAC considers dividends to be attributable first to pre-restructuring profits, irrespective of the accounting reserves from which the distributions are formally made.

Importantly, the adjustment operates through a partial reversal of the original capital gains deferral, limited by the abusive advantage actually realised. It does not involve directly disapplying the dividend exemption provided for under Article 21 LIS.

The TEAC also recognised that the effective reinvestment of dividends in genuine economic activities may reduce, or potentially eliminate, the abusive tax advantage subject to adjustment.

The taxpayer must demonstrate both the business purpose of the investment and its connection to the dividends received.

As a general principle, the Tribunal considers investments made or sufficiently committed before the commencement of the relevant tax audit, although no fixed statutory reinvestment period applies.

In the case examined, the acquisition of investment fund units was regarded as a passive financial investment rather than a reinvestment in economic activities. It therefore did not reduce the abusive tax advantage.

The decision should be considered alongside Spanish Supreme Court Judgment No. 949/2026 of 20 July 2026, which emphasises proportionality and the need for enhanced reasoning when the tax authorities seek to withdraw the deferral of latent capital gains under the FEAC regime.

Nevertheless, the TEAC decision does not relax the requirements for tax-neutral treatment or remove the need for valid economic reasons supporting a restructuring.

Furthermore, the criteria established in this decision have not yet been reiterated and therefore do not constitute binding administrative doctrine within the meaning of Article 239 of the Spanish General Tax Law.

For international investors, family-owned businesses and corporate groups operating through Spanish holding companies, the decision highlights the importance of documenting the commercial rationale for restructuring transactions, identifying the origin of distributed profits and substantiating how dividends are subsequently used.

At ILIA ETL GLOBAL, we consider an integrated approach to corporate and tax planning essential when assessing restructuring transactions in Spain. Such planning should address not only the initial transaction but also its subsequent tax implications, with particular emphasis on supporting economic substance and mitigating potential tax risks.