This document is an excerpt from the EUR-Lex website
Document 62009CA0035
Case C-35/09: Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza (Indirect taxation — Tax on the increase in share capital — Article 4(1)(c) of Directive 69/335/EEC — National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty — The recipient company and the notary jointly and severally liable — No capital contribution in fact made — Limitation of means of proof)
Case C-35/09: Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza (Indirect taxation — Tax on the increase in share capital — Article 4(1)(c) of Directive 69/335/EEC — National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty — The recipient company and the notary jointly and severally liable — No capital contribution in fact made — Limitation of means of proof)
Case C-35/09: Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza (Indirect taxation — Tax on the increase in share capital — Article 4(1)(c) of Directive 69/335/EEC — National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty — The recipient company and the notary jointly and severally liable — No capital contribution in fact made — Limitation of means of proof)
OJ C 234, 28.8.2010, p. 11–12
(BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
|
28.8.2010 |
EN |
Official Journal of the European Union |
C 234/11 |
Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza
(Case C-35/09) (1)
(Indirect taxation - Tax on the increase in share capital - Article 4(1)(c) of Directive 69/335/EEC - National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty - The recipient company and the notary jointly and severally liable - No capital contribution in fact made - Limitation of means of proof)
2010/C 234/16
Language of the case: Italian
Referring court
Corte Suprema di Cassazione
Parties to the main proceedings
Applicants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate
Defendant: Paolo Speranza
Re:
Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 4(1)(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition, 1969 (II), p. 412) — Company resolution converting a limited liability company into a public limited company — Duty on the corresponding increase in capital — National legislation imposing joint and several liability for payment of the duty on the company whose capital is increased and the notary
Operative part of the judgment
|
1. |
Articles 4(1)(c) and 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as not precluding a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them. If, at the time when such an instrument is executed, the actual contribution of assets has not been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite. The principle of effectiveness must be interpreted as precluding national legislation which restricts, before the tax courts, the means of proving that no contribution was in fact effected to increase the capital of a company, in accordance with the company’s resolution, to the production of a civil judgment that has become final declaring the registration null and void or annulling it, so that capital duty must in any event be paid and can be reimbursed only by means of the production of such a civil judgment. |
|
2. |
Directive 69/335, as amended, must be interpreted as not precluding a Member State from providing that the public officer who drafted or certified the instrument recording the increase in capital is jointly and severally liable for payment of capital duty, provided that the officer has the right to bring an action under a right of recourse against the company receiving the capital contribution. |