Spain vs Comeresa Prensa S.L.U., September 2021, Audiencia Nacional, Case No SAN 3857/2021 – ECLI:ES:AN:2021:3857

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VOCENTO, S.A. is the parent company of a multinational publishing group. The registered office of VOCENTO, S.A. is in Bizkaia and it is subject to the regulations of this Territory regarding Corporate Income Tax.

COMERESA PRENSA, S.L.U. is a wholly-owned subsidiary of VOCENTO and holds most of the shares in regional press publishing companies held by the Group of which VOCENTO, S.A. is the parent company, with the exception of the publishing companies with registered offices in the territories of the Autonomous Community of the Basque Country.

In 2015, COMERESA PRENSA, S.L.U. was issued a tax assessment related to pricing of intra-group services. According to the tax authorities Comeresa Prensa had provided certain services to its parent companies -directly and indirectly- for no consideration whatsoever.

Judgement of the Audiencia Nacional

The decision of the tax authorities was set aside on formal grounds.

“It is appropriate to answer in the affirmative the question posed by the Admissibility Order:

To determine whether Article 16. 1 of the revised text of the Law on Corporation Tax, approved by Royal Legislative Decree 4/2004, of 5 March; Article 21 of the Regulation on Corporation Tax, approved by Royal Decree 1777/2004, of 30 July; as well as Articles 2 and 14 of Law 12/2002, of 23 May, which approves the Economic Agreement with the Autonomous Community of the Basque Country, on the one hand; and the general principles which inform the Economic Agreement with the Basque Country together with the principle of good administration derived from Article 103. 1 of our Constitution, on the other hand, must be interpreted in the sense that when a tax audit is carried out on a taxable person who pays corporate income tax in the common territory and who is in turn related to an entity which, according to the connection points fixed in Articles 14 and following of Law 12/2002, of 23rd May , which approves the Economic Agreement with the Autonomous Community of the Basque Country, must be taxed in accordance with the Basque foral regulations, the State Tax Administration Agency is obliged to notify, in accordance with the regulations in force in the common territory, the carrying out of valuation adjustments in transfer pricing matters to the entity which is taxed in accordance with the regulations of the Basque Historical Territories.

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Spain SAN_3857_2021

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