Keywords
Summary

Keywords

1. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies – Exempt transactions

(Council Directive 69/335, Art. 7(1)(b))

2. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Art. 4(1)(g) and (h))

3. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Art. 2(1))

Summary

1. A Member State which makes the exemption from capital duty for the transactions referred to in Article 7(1)(b) of Directive 69/335 subject to compliance by the company concerned with certain conditions, such as a formal opting for a special exemption regime and informing the tax authorities, fails to fulfil its obligations under Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303.

The exemption from capital duty for those transactions which come under that provision is mandatory and unconditional and is, for the companies concerned, a right the exercise of which must be ensured at national level in a straightforward and unambiguous manner.

(see para. 27, operative part)

2. A Member State which imposes capital duty on the transfer from another Member State to its territory of the effective centre of management or the registered office of capital companies which have not been subject to a similar tax in their Member State of origin fails to fulfil its obligations under Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303.

The criterion of ‘taxation’ or of being ‘subject to’ duty in the Member State of origin does not comply with the criterion of ‘capital company’, laid down in Article 4(1)(g) and (h) of Directive 69/335, and thus allows for taxation by way of capital duty in cases not provided for by that directive.

(see para. 37, operative part)

3. A Member State which subjects to capital duty capital allocated to commercial activities pursued in its territory by branches or permanent establishments of companies established in another Member State which does not apply a similar tax fails to fulfil its obligations under Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303.

The taxation in a Member State of such commercial transactions by capital companies having their effective centre of management in another Member State is contrary to Article 2(1) of Directive 69/335, which provides that transactions which are subject to capital duty may be taxed only in the Member State in which the capital company’s effective centre of management is situated at the time of those transactions.

(see para. 45, operative part)