Case C‑837/24

NOVA IBEROMOLDES – SGPS, S. A.

v

Autoridade Tributária e Aduaneira

(Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD))

Judgment of the Court (First Chamber) of 4 June 2026

(Reference for a preliminary ruling – Taxation – Indirect taxes on the raising of capital – Directive 2008/7/EC – Article 5(1)(a) and (e) – Contributions of capital – Restructuring operations – Article 6(1)(a) to (c) – Duties on the transfer of securities – Transfer duties – Formation of a capital company – Paying-up of the share capital by means of shares held by the contributing company in companies owning immovable property – Tax in respect of the transfers of immovable property for consideration)

1. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Scope – Contributions of capital – Restructuring operations – Distinction

   (Council Directive 2008/7, Arts 3(a) and 4(1)(b))

   (see paragraphs 28-30)

2. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Transactions not subject to indirect tax – Restructuring operations – Tax on the transfer of immovable property – Levying of tax on the contribution, to a capital company, of shares of a company owning immovable property in exchange for shares of the recipient company – Not permissible

   (Council Directive 2008/7, Art. 5(1))

   (see paragraphs 37-42, 69, operative part)

3. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Transactions not subject to indirect tax – Restructuring operations – Exceptions – Duties on the transfer of securities – Transfer duties – Scope – Tax on the transfer of immovable property – Levying of tax on the contribution, to a capital company, of shares of a company owning immovable property in exchange for shares of the recipient company – Precluded

   (Council Directive 2008/7, Arts 5(1), and 6(1)(a) and (b))

   (see paragraphs 46-50, 53-58)

4. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Directive 2008/7 – Transactions not subject to indirect tax – Restructuring operations – Tax on the transfer of immovable property – Levying of tax on the contribution, to a capital company, of shares of a company owning immovable property in exchange for shares of the recipient company – Objective of preventing tax evasion and avoidance – Application of the tax without regard to the existence or otherwise of a fraudulent or abusive practice – Non-observance of the principle of proportionality

   (Council Directive 2008/7, Art. 5(1))

   (see paragraphs 63-67)

Résumé

Having received a request for a preliminary ruling from the Tribunal Arbitral Tributário (Tax Arbitration Tribunal, Portugal), the Court of Justice rules, in the context of a business reorganisation, on the compatibility with Directive 2008/7 ( 1 ) of a tax on the acquisition of immovable property due in respect of a non-cash contribution, to a company, of shares of another company which is the owner of immovable property.

Nova Iberomoldes, a public limited company incorporated under Portuguese law, was formed in 2019 as part of a business reorganisation, with a view to carrying on the activity of a holding company. Its share capital was fully paid up by means of non-cash contributions, in the form of shareholdings held by its sole shareholder in several companies, one of which owned immovable property. The Portuguese tax authorities took the view that that asset contribution transaction should be subject to municipal tax on transfers of immovable property for consideration (‘IMT’ ( 2 )), which Nova Iberomoldes disputes.

In that context, the referring court asks the Court, in essence, whether Directive 2008/7 permits the imposition of a tax on the transfer of immovable property in respect of a transaction involving the formation of a capital company, the share capital of which is fully paid up by means of shareholdings held in other companies owning immovable property by the contributing company, which receives, as consideration, the entire share capital of the company thus formed.

Findings of the Court

In the first place, the Court recalls that Article 5(1)(a) and (e) of Directive 2008/7 requires Member States not to subject capital companies to any form of indirect tax whatsoever in respect of the contributions of capital referred to in Article 3 of that directive and in respect of the restructuring operations referred to in Article 4 thereof.

In the present case, the transaction in which Nova Iberomoldes was formed meets the criteria of ‘restructuring operations’ as set out in Article 4(1)(b) of Directive 2008/7. The share capital of Nova Iberomoldes was fully paid up by the company which is its sole shareholder, through the contribution of shares which the latter company held in the capital of other companies and which represented the majority of the voting rights of those companies; the consideration for those shares were the securities representing the capital of Nova Iberomoldes. Accordingly, that restructuring operation must not be subject to any form of indirect tax whatsoever.

In that regard, and in so far as IMT is levied in connection with the transfer of shares of a company owning immovable property, in particular where there is a contribution, to a capital company, of such shares, IMT constitutes an indirect tax falling within the prohibition under Article 5(1) of Directive 2008/7. The Court thus rejects the argument that the operative event for IMT lies in the economic transfer of ownership of immovable property rather than in the transfer of shares, and rejects the argument that the basis of assessment for IMT is not the value of the shares contributed, but the reference value of the relevant immovable property for tax purposes, since, in any event, the levying of IMT in connection with the contribution, to a capital company, of shares of a company owning immovable property, has the effect of making such a contribution subject to that tax.

In the second place, the Court rejects the application, to the facts at issue in the main proceedings, of the derogations from Article 5 of Directive 2008/7 that are permitted by Article 6(1) thereof.

First, under Article 6(1)(a) of Directive 2008/7, Member States may levy duties on the transfer of securities, since that derogating provision can apply only to transfers of securities which constitute an independent transaction. In the present case, in so far as the transfer of shares is not an independent transaction, but an incidental transaction, integral to a restructuring operation referred to in Article 5(1)(e) of Directive 2008/7, IMT cannot fall within that derogation.

Second, it follows from Article 6(1)(b) of that directive that Member States may levy transfer duties on the transfer of immovable property to a capital company. However, no transfer of the right of ownership took place in the present case, since the immovable property in question remained within the assets of the company the shares of which were contributed to Nova Iberomoldes. Moreover, even if it were necessary to take an economic perspective, it cannot be found that a transfer of actual ownership of immovable property took place in connection with a reorganisation operation such as that at issue in the main proceedings.

Lastly, the Court rejects the argument that the tax at issue could be justified by the objective of preventing tax evasion and avoidance. Such a justification cannot be based on a general presumption applied without exception, as otherwise the principle of proportionality would be undermined.

( 1 ) Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11).

( 2 ) Imposto municipal sobre as Transmissões Onerosas de imóveis (Decreto-Lei n.o 287/2003).