# C_2016392EN.01000901.xml

| 24.10.2016 | EN | Official Journal of the European Union | C 392/9 |
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24.10.2016

EN

Official Journal of the European Union

C 392/9

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 28 July 2016 — Ministre des finances et des comptes publics v Marc Lassus

(Case C-421/16)

(2016/C 392/12)

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ministre des finances et des comptes publics

Applicant:

Defendant: Marc Lassus

Defendant:

Questions referred

Questions referred

| 1. | Must the provisions of Article 8 of Directive 90/434/EEC of 23 July 1990 (1) be interpreted as meaning that they prohibit, in the event of an exchange of securities falling within the scope of the directive, a mechanism for deferred taxation which provides, by way of derogation from the rule that the chargeable event for capital gains tax purposes occurs during the year in which the gain arises, that the capital gain on the exchange is established and settled on the exchange of the securities, and taxed in the year in which the event bringing an end to the deferred taxation occurs, which may, inter alia, be the transfer of the securities that were received at the time of the exchange? |
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1.

Must the provisions of Article 8 of Directive 90/434/EEC of 23 July 1990 (1) be interpreted as meaning that they prohibit, in the event of an exchange of securities falling within the scope of the directive, a mechanism for deferred taxation which provides, by way of derogation from the rule that the chargeable event for capital gains tax purposes occurs during the year in which the gain arises, that the capital gain on the exchange is established and settled on the exchange of the securities, and taxed in the year in which the event bringing an end to the deferred taxation occurs, which may, inter alia, be the transfer of the securities that were received at the time of the exchange?

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| 2. | Assuming that it is taxable, may the capital gain on the exchange of securities be taxed by the State with powers of taxation at the time of the exchange, although the transfer of the securities received on that exchange falls within the fiscal competence of another Member State? |
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2.

Assuming that it is taxable, may the capital gain on the exchange of securities be taxed by the State with powers of taxation at the time of the exchange, although the transfer of the securities received on that exchange falls within the fiscal competence of another Member State?

| 3. | If the answer to the previous questions is that the directive does not preclude the capital gain resulting from an exchange of securities from being taxed at the time at which the securities received at the time of that exchange are subsequently transferred, even if those two transactions do not fall within the fiscal competence of the same Member State, may the Member State in which the capital gain on the exchange was subject to deferred taxation tax the deferred capital gain at the time of the transfer, subject to the applicable provisions of the bilateral Tax Convention, irrespective of the outcome of the transfer when it results in a capital loss? That question is asked in respect of both Directive 90/434/EEC and the freedom of establishment guaranteed by Article 43 [EC], now Article 49 [TFEU], since a taxpayer whose tax residence is in France at the time at which the securities are exchanged and at the time at which they are transferred may, under the conditions set out in paragraph 4 above, benefit from a tax credit derived from the capital loss on the transfer. |
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3.

If the answer to the previous questions is that the directive does not preclude the capital gain resulting from an exchange of securities from being taxed at the time at which the securities received at the time of that exchange are subsequently transferred, even if those two transactions do not fall within the fiscal competence of the same Member State, may the Member State in which the capital gain on the exchange was subject to deferred taxation tax the deferred capital gain at the time of the transfer, subject to the applicable provisions of the bilateral Tax Convention, irrespective of the outcome of the transfer when it results in a capital loss? That question is asked in respect of both Directive 90/434/EEC and the freedom of establishment guaranteed by Article 43 [EC], now Article 49 [TFEU], since a taxpayer whose tax residence is in France at the time at which the securities are exchanged and at the time at which they are transferred may, under the conditions set out in paragraph 4 above, benefit from a tax credit derived from the capital loss on the transfer.

| 4. | If the answer to Question 3 is that account must be taken of the capital loss on the transfer of the securities received at the time of the exchange, must the Member State in which the capital gain on the exchange was derived offset the capital loss on the transfer against the capital gain or, if the transfer does not fall within its fiscal competence, must that Member State forego the taxation of the capital gain on the exchange? |
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4.

If the answer to Question 3 is that account must be taken of the capital loss on the transfer of the securities received at the time of the exchange, must the Member State in which the capital gain on the exchange was derived offset the capital loss on the transfer against the capital gain or, if the transfer does not fall within its fiscal competence, must that Member State forego the taxation of the capital gain on the exchange?

| 5. | If the answer to Question 4 is that the capital loss on the transfer may be offset against the capital gain on the exchange, what purchase price must be used for the securities transferred in order to calculate the capital loss on that transfer? In particular, should the purchase price per unit for the securities transferred be the total value of the securities in the company that were received upon the exchange, as indicated on the capital gains tax return, divided by the number of securities received at the time of the exchange, or should a weighted average purchase price be used, also taking into account transactions occurring after the exchange, such as further acquisitions or free allotments of securities in the same company? |
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5.

If the answer to Question 4 is that the capital loss on the transfer may be offset against the capital gain on the exchange, what purchase price must be used for the securities transferred in order to calculate the capital loss on that transfer? In particular, should the purchase price per unit for the securities transferred be the total value of the securities in the company that were received upon the exchange, as indicated on the capital gains tax return, divided by the number of securities received at the time of the exchange, or should a weighted average purchase price be used, also taking into account transactions occurring after the exchange, such as further acquisitions or free allotments of securities in the same company?

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(1)  Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1).

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