Buying a Company or Subsidiary in Spain: M&A Guide

Expanding an international corporate group into the Iberian market requires a decisive structural choice during the preparatory stage: should you proceed with buying a company in Spain that is already operational, or should you prioritize setting up a subsidiary (or a branch office)? To secure this investment, partnering with a law firm specialized in company acquisitions and M&A transactions in Spain is essential to align the legal vehicle with your financial goals while neutralizing the tax and employment risks specific to Spanish law.

At Grupo Alcázar, a member of the international EuropeFides alliance, our multidisciplinary teams (corporate M&A lawyers, tax advisors, ROAC-registered statutory auditors, and employment law specialists) advise international executives and private equity funds from our offices in Málaga and Granada. Unlike fragmented firms that outsource financial audits, our 100% in-house procedural methodology —managed through advanced collaborative tools such as the Kleos client portal— ensures fast, confidential, and seamless execution.

1. External vs Organic Growth: Buying a Company, Setting Up a Subsidiary, or Opening a Branch?

Choosing the right legal investment vehicle in Spain depends on three core variables: speed of market entry (Time-to-Market), the degree of asset protection required by the foreign parent company, and the tax treatment of cross-border cash flows.

A. Buying a company in Spain (Target acquisition / External growth)

Acquiring an active Sociedad Limitada (SL, Limited Liability Company) or Sociedad Anónima (SA, Public Limited Company) allows you to immediately integrate a client portfolio, a qualified workforce, supplier contracts, and, above all, administrative licenses or sector approvals that would take 6 to 18 months to obtain from scratch. In exchange, the transaction requires a thorough acquisition audit (Due Diligence) and a tightly drafted Share Purchase Agreement (SPA) backed by robust representations, warranties, and indemnities.

B. Setting up a Spanish subsidiary (Sociedad Limitada – SL)

A subsidiary has its own distinct legal personality, completely independent from the foreign parent company. Its liability is strictly limited to its share capital contributions. Since the enactment of Law 18/2022 (Ley Crea y Crece), although it is legally possible to incorporate an SL with €1 of share capital, corporate practice strongly recommends contributing the standard €3,000 minimum capital upon incorporation to avoid the statutory obligation of locking 20% of profits into a legal reserve and joint liability of shareholders up to €3,000 in the event of liquidation.

C. Opening a branch office (Sucursal en España)

A branch is merely a permanent establishment without a separate legal personality. Although it requires no minimum share capital and allows initial start-up losses to be offset directly against the parent company’s taxable income in its home jurisdiction (subject to Double Tax Treaty rules), it carries a major drawback: the foreign parent company is directly andunlimitedly liable with its entire balance sheet for all debts incurred by the Spanish branch.

2. Structuring a Company Acquisition in Spain: Share Deal vs Asset Deal

When a foreign investor decides to acquire a target company in Spain, the primary technical decision involves choosing between purchasing the company’s shares (Share Deal) and acquiring specific assets or an autonomous business unit (Asset Deal).

The Share Deal (Purchase of company shares or quotas)

The investor purchases the equity directly from the selling shareholders. The target company retains its tax ID (NIF), public and private contracts, municipal licenses, and employees without requiring contractual novation (except where Change of Control clauses exist in banking or commercial agreements). From a tax perspective, the transfer of shares is exempt from VAT and Transfer Tax (ITP), with one critical exception: Article 338 of the Spanish Securities Market Act (LMV) subjects the transaction to Transfer Tax (ranging from 6% to 10% depending on the Autonomous Community, 7% in Andalusia) if more than 50% of the target’s assets consist of real estate located in Spain not assigned to an active business, and the transaction is intended to avoid property transfer tax.

The Asset Deal (Purchase of business assets or a going concern)

A newly incorporated Spanish subsidiary set up by the investor purchases only selected assets (machinery, trademarks, inventory, goodwill, leases). If the transferred bundle constitutes an “autonomous economic unit” capable of operating independently (Article 7.1 of the Spanish VAT Act – LIVA), the transaction is not subject to VAT (IVA), avoiding the cash-flow burden of advancing 21% VAT. However, beware of the business succession trap: even in an Asset Deal, Article 44 of the Workers’ Statute and Article 42.1.c of the General Tax Act (LGT) automatically transfer joint and several liability for prior employment, Social Security, and tax debts to the buyer by operation of law, unless a clearance certificate for business succession is obtained beforehand from the Tax Agency (AEAT) and Social Security (TGSS).

3. The 5 Key Stages of an M&A Transaction and Due Diligence in Spain

In Spain, civil and commercial law governing corporate acquisitions relies heavily on the principle of Caveat Emptor: without express contractual warranties and prior auditing, default statutory protection under the Civil Code (hidden defects, Art. 1484 CC) is manifestly insufficient to cover the tax or labor contingencies of a commercial company. At Grupo Alcázar, every transaction follows a five-stage protocol:

1. Signing the NDA (Non-Disclosure Agreement) and LOI (Letter of Intent)

Before opening the virtual Data Room, the parties execute an NDA governing confidentiality and non-solicitation of key personnel. The Letter of Intent (LOI / Term Sheet) then sets the indicative valuation (typically indexed to an EBITDA multiple minus Net Financial Debt), the audit timeline, and two strictly binding clauses: negotiation exclusivity and confidentiality.

2. Multidisciplinary Due Diligence (Legal, Tax, Labor, and Financial)

Performed entirely in-house by our financial and accounting audit and tax law departments, the Due Diligence scrutinizes the last four open fiscal years (the statute of limitations for taxes in Spain is 4 years under Article 66 LGT). We specifically verify:

• Corporate Stream: Unbroken chain of title in the Register Book of Shareholders, absence of registry sheet closure at the Registro Mercantil (often caused by failure to file annual accounts), and validity of directors’ appointments and powers of attorney.
• Tax Stream: Compliance with Corporate Income Tax (Form 200), VAT (Forms 303/390), withholding taxes, and intragroup transfer pricing obligations (Form 232).
• Labor Stream: Employment contract classifications, compliance with the applicable collective bargaining agreement, undeclared overtime, and misclassification risks involving bogus self-employed workers (falsos autónomos).

3. Price Structuring and Warranties in the SPA (Share Purchase Agreement)

Contingencies quantified during Due Diligence are used to adjust the purchase price (via Completion Accounts or Locked Box mechanisms) and to draft the seller’s Representations & Warranties (R&W) and specific indemnities. To secure the seller’s solvency against potential post-closing tax assessments, we implement price retentions, notarized or bank Escrow Accounts, first-demand bank guarantees, or contingent price clauses (Earn-Out).

4. Pre-Closing Formalities for Foreign Investors (NIE, NIF, and FDI Screening)

Every foreign individual appointed as director or representative, as well as any foreign entity acquiring shares in Spain, must obtain a NIE (Foreigner Identity Number) or a non-resident corporate Tax ID (Type “N” NIF) from the National Police or the Spanish Tax Agency (AEAT) prior to appearing before the notary. Furthermore, the notarized Beneficial Ownership Deed (Acta de Titularidad Real, Law 10/2010 AML) and the foreign investment filing with the Ministry of Economy’s Investment Registry (Form D-1A) are mandatory.

5. Notarial Closing and Sole Shareholder Registration (Beware of the 6-month deadline)

In Spain, transferring shares of an SL requires a public deed (Escritura Pública) executed before a Spanish notary. Critical compliance alert: if your foreign group acquires 100% of the shares of a Spanish company that previously had multiple shareholders, you have a strict 6-month deadline from the acquisition date to register the supervening sole-shareholder status (SLU / SAU) and the identity of the sole owner with the Registro Mercantil. Failure to do so (Article 14 of the Spanish Companies Act – LSC) renders the foreign parent company personally, unlimitedly, and jointly liable for all company debts incurred during the period of unipersonality!

4. Step-by-Step Guide to Setting Up a Subsidiary (SL) in Spain Remotely

If your strategy favors incorporating a clean vehicle with no prior history, our comprehensive business advisory service in Spain manages the entire incorporation of your subsidiary without requiring foreign executives to travel, using a special apostilled power of attorney:

1. Obtaining NIEs and the Parent Company’s “N” NIF

Issuance of Spanish tax identification numbers for the incoming foreign directors and the foreign holding or parent company, upon submission of a recent certificate of good standing from the home commercial registry duly legalized with the Hague Apostille and translated by a sworn translator (Traductor Jurado).

2. Negative Certificate of Company Name

Reservation of the subsidiary’s corporate name with the Registro Mercantil Central (valid for 6 months, with certificate renewal required after 3 months prior to notarial signing).

3. Opening a Corporate Bank Account and Paying In Share Capital

Transferring the share capital (€3,000 recommended for an SL) from the foreign parent company’s bank account, or making an express notarial declaration by the founding shareholders assuming joint liability for the reality of the cash contributions (Art. 62.2 LSC).

4. Drafting Bespoke Bylaws and Signing the Incorporation Deed

Precise drafting of the corporate purpose (with corresponding CNAE activity codes), the registered office in Spain, and the governing body structure (Sole Director, Joint and Several Directors, Joint Directors, or Board of Directors).

5. Permanent NIF, Commercial Registry Filing, and FNMT Digital Certificate

Once the public deed is registered with the provincial Commercial Registry (Málaga, Granada, Madrid, Barcelona), we activate the permanent NIF (Form 036), Social Security registration, and the Corporate Representative Digital Certificate (FNMT), which is mandatory for electronic communications with Spanish authorities.

5. Spanish Corporate Tax Advantages: CIT Rates, Dividends, and Double Tax Treaties

Spain’s corporate tax framework offers highly competitive optimization levers for international groups, backed by Spain’s extensive network of Double Tax Treaties and Law 27/2014 on Corporate Income Tax (LIS):

15% Reduced Corporate Tax Rate for Newly Formed Companies

Any newly incorporated subsidiary in Spain carrying out a new economic activity qualifies for a reduced 15% Corporate Income Tax rate during its first profitable tax period and the following year (provided the activity was not previously carried out by related entities within the same corporate group under Article 42 of the Commercial Code).

Progressive Tax Rate Reductions for SMEs and Micro-Enterprises (2025–2027 Reform)

While Spain’s headline Corporate Income Tax rate stands at 25%, the Spanish tax reform progressively lowers the tax rate for micro-enterprises (turnover below €1M) toward a 17%–20% bracket, and for small and medium-sized enterprises (turnover below €10M) to 20%.

Withholding-Free Dividend Repatriation (EU Parent-Subsidiary Directive)

Under the EU Parent-Subsidiary Directive and Article 14.1.h of the Non-Resident Income Tax Act (LIRNR), dividends distributed by a Spanish subsidiary to an EU parent company are 100% exempt from Spanish withholding tax, provided the parent holds at least a 5% stake uninterruptedly for 1 year and the corporate structure reflects valid economic reasons (anti-abuse rule).

95% Participation Exemption on Dividends and Capital Gains (Article 21 LIS)

If you use a Spanish holding company (or the ETVE foreign-securities holding regime) to hold equity stakes, Article 21 of the LIS grants a 95% exemption on qualifying dividends and capital gains from the sale of subsidiaries, resulting in an effective tax rate of just 1.25% (at the 25% general rate).

Frequently Asked Questions (FAQ) on Buying or Setting Up a Company in Spain

1. Can a foreign resident serve as director of a Spanish SL without living in Spain?

Yes, Spanish nationality or tax residency in Spain is not required to be appointed director of a Spanish company. The foreign director simply needs to obtain a valid NIE number. However, from a Spanish Social Security standpoint, if the director performs active management functions while holding effective control (direct or indirect) of the company, the appointment of a local resident representative or executive registered under the appropriate Social Security scheme must be planned in advance.

2. Are acquisition loan interest expenses tax-deductible in a Spanish LBO?

Article 16 of the Corporate Income Tax Act (LIS) caps the deductibility of net financial expenses at 30% of the company’s tax EBITDA for the year (with a guaranteed deductible allowance of up to €1 million per year). Furthermore, Article 15.h of the LIS disallows the deduction of interest on loans obtained from companies within the same corporate group (Art. 42 CCom) to acquire shares in other group entities, unless the taxpayer demonstrates valid economic reasons.

3. How long does a full Due Diligence take in Spain and how does it protect the buyer?

For an industrial or service SME in Spain, a comprehensive acquisition audit (covering corporate, tax, labor, and financial streams over the last 4 open fiscal years) takes an average of 3 to 5 weeks from full Data Room access. Thanks to the integration of ROAC statutory auditors and M&A lawyers within Grupo Alcázar’s offices, we deliver an executive Red Flag Report quantifying every contingency to directly adjust the SPA purchase price.