# C_2014093EN.01000601.xml

| 29.3.2014 | EN | Official Journal of the European Union | C 93/6 |
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29.3.2014

EN

Official Journal of the European Union

C 93/6

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Judgment of the Court (First Chamber) of 23 January 2014 (request for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — DMC Beteiligungsgesellschaft mbH v Finanzamt Hamburg-Mitte

(Case C-164/12) (1)

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(Taxation - Corporation tax - Transfer of an interest in a partnership to a capital company - Book value - Value as part of a going concern - Agreement on the prevention of double taxation - Immediate taxation of unrealised capital gains - Different treatment - Restriction on free movement of capital - Preserving the balanced allocation of powers to impose taxes between the Member States - Proportionality)

2014/C 93/08

Language of the case: German

Referring court

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Parties to the main proceedings

Applicant: DMC Beteiligungsgesellschaft mbH

Applicant:

Defendant: Finanzamt Hamburg-Mitte

Defendant:

Re:

Re:

Request for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 43 EC (now Article 49 TFEU) — Partnerships established in another Member State contributing interests in an undertaking to a national capital company in exchange for shares in that company — Legislation providing that in such a case the capital contributed must be entered in the balance sheet of the capital company at its true value and not its book value, thus bringing forward the date on which the unrealised capital gains will be taxed — Whether it is possible to pay the tax in five annual instalments if a guarantee is provided.

Operative part of the judgment

Operative part of the judgment

| 1. | Article 63 TFEU must be interpreted as meaning that the objective of preserving the balanced allocation of the power to impose taxes between Member States may justify the legislation of a Member State which requires assets in a limited partnership contributed to the capital of a capital company with its registered office in the territory of that Member State to be assessed at their value as part of a going concern, thus giving rise to the taxation, before they are actually realised, of the capital gains relating to those assets generated in that territory, if it will in fact be impossible for that Member State to exercise its powers of taxation in relation to those gains when they are in fact realised, which is a matter for the national court to determine. |
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1.

Article 63 TFEU must be interpreted as meaning that the objective of preserving the balanced allocation of the power to impose taxes between Member States may justify the legislation of a Member State which requires assets in a limited partnership contributed to the capital of a capital company with its registered office in the territory of that Member State to be assessed at their value as part of a going concern, thus giving rise to the taxation, before they are actually realised, of the capital gains relating to those assets generated in that territory, if it will in fact be impossible for that Member State to exercise its powers of taxation in relation to those gains when they are in fact realised, which is a matter for the national court to determine.

| 2. | The national legislation of a Member State which provides for the immediate taxation of unrealised capital gains generated in its territory does not go beyond what is necessary to attain the objective of the preservation of the balanced allocation of the power to impose taxes between Member States, provided that, where the taxable person elects for deferred payment, the requirement to provide a bank guarantee is imposed on the basis of the actual risk of non-recovery of the tax. |
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2.

The national legislation of a Member State which provides for the immediate taxation of unrealised capital gains generated in its territory does not go beyond what is necessary to attain the objective of the preservation of the balanced allocation of the power to impose taxes between Member States, provided that, where the taxable person elects for deferred payment, the requirement to provide a bank guarantee is imposed on the basis of the actual risk of non-recovery of the tax.

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(1)  OJ C 217, 21.7.2012

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