# C_2016136EN.01001301.xml

| 18.4.2016 | EN | Official Journal of the European Union | C 136/13 |
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18.4.2016

EN

Official Journal of the European Union

C 136/13

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Request for a preliminary ruling from the Rechtbank van eerste aanleg Antwerpen (Belgium) lodged on 25 January 2016 — Argenta Spaarbank NV v Belgische Staat

(Case C-39/16)

(2016/C 136/18)

Language of the case: Dutch

Referring court

Referring court

Rechtbank van eerste aanleg Antwerpen

Parties to the main proceedings

Parties to the main proceedings

Applicant: Argenta Spaarbank NV

Applicant:

Defendant: Belgische Staat

Defendant:

Questions referred

Questions referred

| 1. | Does Article 198(10) of the 1992 Income Tax Code, in the version which was in force for the 2000 and 2001 tax years, infringe Article 4(2) of the Parent-Subsidiary Directive of 23 July 1990 (Council Directive 90/435/EEC (1)), in so far as that article of the Income Tax Code provides that interest is not to be regarded as a business expense up to an amount corresponding to the amount of the dividends qualifying for exemption under Articles 202 to 204 where those dividends are derived from shares which, at the time of their transfer, had not been held for an uninterrupted period of at least one year, in which connection no distinction is made according to whether those interest payments relate to (the financing of) the holding from which the dividends qualifying for exemption were derived or not? |
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1.

Does Article 198(10) of the 1992 Income Tax Code, in the version which was in force for the 2000 and 2001 tax years, infringe Article 4(2) of the Parent-Subsidiary Directive of 23 July 1990 (Council Directive 90/435/EEC (1)), in so far as that article of the Income Tax Code provides that interest is not to be regarded as a business expense up to an amount corresponding to the amount of the dividends qualifying for exemption under Articles 202 to 204 where those dividends are derived from shares which, at the time of their transfer, had not been held for an uninterrupted period of at least one year, in which connection no distinction is made according to whether those interest payments relate to (the financing of) the holding from which the dividends qualifying for exemption were derived or not?

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| 2. | Does Article 198(10) of the 1992 Income Tax Code, in the version which was in force for the 2000 and 2001 tax years, constitute a provision for the prevention of fraud or abuse within the meaning of Article 1(2) of the Parent-Subsidiary Directive of 23 July 1990 (Council Directive 90/435/EEC), and, if so, does Article 198(10) of the 1992 Income Tax Code go further than is necessary in order to combat such fraud or abuse in so far as it provides that interest is not to be regarded as a business expense up to an amount corresponding to the dividends qualifying for exemption under Articles 202 to 204 where those dividends are derived from shares which, at the time of their transfer, had not been held for an uninterrupted period of at least one year, in which connection no distinction is made according to whether those interest payments relate to (the financing of) the holding from which the dividends qualifying for exemption were derived or not? |
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2.

Does Article 198(10) of the 1992 Income Tax Code, in the version which was in force for the 2000 and 2001 tax years, constitute a provision for the prevention of fraud or abuse within the meaning of Article 1(2) of the Parent-Subsidiary Directive of 23 July 1990 (Council Directive 90/435/EEC), and, if so, does Article 198(10) of the 1992 Income Tax Code go further than is necessary in order to combat such fraud or abuse in so far as it provides that interest is not to be regarded as a business expense up to an amount corresponding to the dividends qualifying for exemption under Articles 202 to 204 where those dividends are derived from shares which, at the time of their transfer, had not been held for an uninterrupted period of at least one year, in which connection no distinction is made according to whether those interest payments relate to (the financing of) the holding from which the dividends qualifying for exemption were derived or not?

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(1)  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 (OJ 1990 L 225, p. 6).

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