# C_2017437EN.01000601.xml

| 18.12.2017 | EN | Official Journal of the European Union | C 437/6 |
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18.12.2017

EN

Official Journal of the European Union

C 437/6

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Judgment of the Court (Fifth Chamber) of 26 October 2017 (request for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen — Belgium) — Argenta Spaarbank NV v Belgische Staat

(Case C-39/16) (1)

1

((Reference for a preliminary ruling - Corporation tax - Directive 90/435/EEC - Articles 1(2) and 4(2) - Parent companies and subsidiaries of different Member States - Common system of taxation - Deductibility from the taxable profits of the parent company - Domestic provisions seeking to abolish the double taxation of profits distributed by subsidiaries - No account taken of the existence of a link between the interest on loans and the financing of the holding that gave rise to the payment of dividends))

(2017/C 437/08)

Language of the case: Dutch

Referring court

Referring court

Rechtbank van eerste aanleg te Antwerpen

Parties to the main proceedings

Parties to the main proceedings

Applicant: Argenta Spaarbank NV

Applicant:

Defendant: Belgische Staat

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 4(2) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States must be interpreted as precluding a provision of domestic law, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, pursuant to which interest paid by a parent company under a loan is not deductible from the taxable profits of that parent company up to an amount equal to that of the dividends, which already benefit from tax deductibility, that are received from the holdings of that parent company in the capital of its subsidiary companies that have been held for a period of less than one year, even if such interest does not relate to the financing of such holdings; |
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1.

Article 4(2) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States must be interpreted as precluding a provision of domestic law, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, pursuant to which interest paid by a parent company under a loan is not deductible from the taxable profits of that parent company up to an amount equal to that of the dividends, which already benefit from tax deductibility, that are received from the holdings of that parent company in the capital of its subsidiary companies that have been held for a period of less than one year, even if such interest does not relate to the financing of such holdings;

| 2. | Article 1(2) of Directive 90/435 must be interpreted as not authorising Member States to apply a domestic provision, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, to the extent that that provision goes beyond what is necessary for the prevention of fraud and abuse. |
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2.

Article 1(2) of Directive 90/435 must be interpreted as not authorising Member States to apply a domestic provision, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, to the extent that that provision goes beyond what is necessary for the prevention of fraud and abuse.

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(1)  OJ C 136, 18.4.2016.

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