# C_2010234EN.01001101.xml

| 28.8.2010 | EN | Official Journal of the European Union | C 234/11 |
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28.8.2010

EN

Official Journal of the European Union

C 234/11

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Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza

(Case C-35/09) (1)

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(Indirect taxation - Tax on the increase in share capital - Article 4(1)(c) of Directive 69/335/EEC - National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty - The recipient company and the notary jointly and severally liable - No capital contribution in fact made - Limitation of means of proof)

2010/C 234/16

Language of the case: Italian

Referring court

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

Applicants:

Defendant: Paolo Speranza

Defendant:

Re:

Re:

Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 4(1)(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition, 1969 (II), p. 412) — Company resolution converting a limited liability company into a public limited company — Duty on the corresponding increase in capital — National legislation imposing joint and several liability for payment of the duty on the company whose capital is increased and the notary

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 4(1)(c) and 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as not precluding a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them. If, at the time when such an instrument is executed, the actual contribution of assets has not been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite. The principle of effectiveness must be interpreted as precluding national legislation which restricts, before the tax courts, the means of proving that no contribution was in fact effected to increase the capital of a company, in accordance with the company’s resolution, to the production of a civil judgment that has become final declaring the registration null and void or annulling it, so that capital duty must in any event be paid and can be reimbursed only by means of the production of such a civil judgment. |
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1.

Articles 4(1)(c) and 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as not precluding a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them. If, at the time when such an instrument is executed, the actual contribution of assets has not been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite. The principle of effectiveness must be interpreted as precluding national legislation which restricts, before the tax courts, the means of proving that no contribution was in fact effected to increase the capital of a company, in accordance with the company’s resolution, to the production of a civil judgment that has become final declaring the registration null and void or annulling it, so that capital duty must in any event be paid and can be reimbursed only by means of the production of such a civil judgment.

| 2. | Directive 69/335, as amended, must be interpreted as not precluding a Member State from providing that the public officer who drafted or certified the instrument recording the increase in capital is jointly and severally liable for payment of capital duty, provided that the officer has the right to bring an action under a right of recourse against the company receiving the capital contribution. |
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2.

Directive 69/335, as amended, must be interpreted as not precluding a Member State from providing that the public officer who drafted or certified the instrument recording the increase in capital is jointly and severally liable for payment of capital duty, provided that the officer has the right to bring an action under a right of recourse against the company receiving the capital contribution.

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(1)  OJ C 82, 04.04.2009.

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