HECHO GENERADOR EN REESTRUCTURACIONES SOCIETARIAS: ANÁLISIS DEL IMPUESTO SOBRE ENAJENACIÓN DE DERECHOS REPRESENTATIVOS DE CAPITAL

Abstract

This work analyzes the technical and legal issues in the application of the single income tax on the transfer of representative capital rights (IRUED) in Ecuador, specifically regarding cases of corporate restructuring processes that finds a fundamental contradiction between the legal text established in the Internal Tax Regime Law and the interpretation of Tax Administration contained in Circular NAC-DGECCGC25-00000005. In this regard, the law establishes that the tax-generating event does not occur in corporate restructuring processes when "the effective beneficiaries are the same in the same proportion, before and after" the process. However, the Tax Authority interprets that being "the same" beneficiaries is solely tied to the fact that the proportional equity value remains unchanged, introducing a quantitative criterion not contemplated in the legal norm. With this interpretation, problems arise such as the violation of the principle of tax legality, the creation of legal uncertainty for legitimate corporate operations, and the potential for improperly taxing business reorganizations where there is no actual capital gain. As a result of the analysis, it is proposed to adopt technical criteria in the current regulation, such as a test for continuity of effective economic control, equity tolerance ranges, and a dominant commercial purpose test.