Intra-Group Funding Mechanisms at Risk: Denial of Interest Deductibility on Leveraged Share Premium Distribution by Application of the Spanish GAAR

This article analyses the binding report issued in July 2022 by the Advisory Committee to the Spanish tax authorities, which concluded that a series of restructuring transactions undertaken by a Spanish taxpayer were wholly artificial and, therefore, abusive. The Advisory Committee applies the Spanish General Anti-Abuse Rule to deny the deductibility of interest from an intercompany loan granted to distribute a share premium to the ultimate shareholders, claiming that such premium was artificially generated through unnecessary restructuring transactions. The author explores the different transactions undertaken by the taxpayer, the reasoning behind the alleged existence of abuse and the potential implications for multinational enterprises, providing recommendations for audit-proof structures.