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23.9.2019 |
EN |
Official Journal of the European Union |
C 319/20 |
Order of the Court (Eighth Chamber) of 15 July 2019 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Galeria Parque Nascente-Exploração de Espaços Comerciais SA v Autoridade Tributária e Aduaneira
(Case C-438/18) (1)
(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States - Directive 90/434/EEC - Articles 4 and 11 - Directive 2009/133/EC - Articles 4 and 15 - ‘Reverse merger’ - Tax system leading to a situation whereby, in the event of a ‘reverse merger’, costs which are incurred by the parent company relating to a loan taken out by that parent company for the purchase of shares of the subsidiary acquiring the parent company and which are deductible for that parent company are considered non-deductible for that subsidiary)
(2019/C 319/22)
Language of the case: Portuguese
Referring court
Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)
Parties to the main proceedings
Applicant: Galeria Parque Nascente-Exploração de Espaços Comerciais SA
Defendant: Autoridade Tributária e Aduaneira
Operative part of the judgment
Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States, as amended by Council Directive 2006/98/EC of 20 November 2006, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which leads to a situation whereby costs which were considered tax deductible for the acquired company before the merger of the companies concerned, and which would have been tax deductible if that merger had not taken place, are not considered tax deductible for the acquiring company.