# C_2009180EN.01001702.xml

| 1.8.2009 | EN | Official Journal of the European Union | C 180/17 |
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1.8.2009

EN

Official Journal of the European Union

C 180/17

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Judgment of the Court (Fourth Chamber) of 11 June 2009 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X (C-155/08), E.H.A. Passenheim-van Schoot (C-157/08) v Staatssecretaris van Financiën

(Case C-155/08 and C-157/08) (1)

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(Freedom to provide services - Free movement of capital - Wealth tax - Income tax - Savings deposited in a Member State other than the Member State of residence - No declaration - Recovery period - Extension of the recovery period in the case of assets held outside the Member State of residence - Directive 77/799/EEC - Mutual assistance of the competent authorities of the Member States in the field of direct and indirect taxation - Banking secrecy)

2009/C 180/28

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Applicants: X (C-155/08), E.H.A. Passenheim-van Schoot (C-157/08)

Applicants:

Defendant: Staatssecretaris van Financiën

Defendant:

Re:

Re:

Preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 49 EC and 56 EC — Taxation by a Member State of income (from capital) of a national resident held in an account in an establishment situated in another Member State — Income not declared in the Member State of residence — Rules of national law providing for a 12-year recovery period in respect of income from another Member State and a 5-year recovery period in respect of income from national sources — Proportional fine — Possible relevance of the fact that banking secrecy applies in the Member State in which the income originated.

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 49 EC and 56 EC must be interpreted as not precluding the application by a Member State, where savings balances and income from those balances are concealed from the tax authorities of that Member State and the latter have no evidence of their existence which would enable an investigation to be initiated, of a longer recovery period when the balances are held in another Member State than when they are held in the first Member State. The fact that that other Member State applies banking secrecy is not relevant in that regard. |
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1.

Articles 49 EC and 56 EC must be interpreted as not precluding the application by a Member State, where savings balances and income from those balances are concealed from the tax authorities of that Member State and the latter have no evidence of their existence which would enable an investigation to be initiated, of a longer recovery period when the balances are held in another Member State than when they are held in the first Member State. The fact that that other Member State applies banking secrecy is not relevant in that regard.

| 2. | Articles 49 EC and 56 EC must be interpreted as not precluding, when a Member State applies a longer recovery period in the case of assets held in another Member State than in the case of assets held in the first Member State and such foreign assets and the income therefrom were concealed from the first Member State’s tax authorities which had no evidence of their existence enabling an investigation to be initiated, the fine imposed for concealment of the foreign assets and income from being calculated as a proportion of the amount to be recovered and over that longer period. |
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2.

Articles 49 EC and 56 EC must be interpreted as not precluding, when a Member State applies a longer recovery period in the case of assets held in another Member State than in the case of assets held in the first Member State and such foreign assets and the income therefrom were concealed from the first Member State’s tax authorities which had no evidence of their existence enabling an investigation to be initiated, the fine imposed for concealment of the foreign assets and income from being calculated as a proportion of the amount to be recovered and over that longer period.

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(1)  OJ C 158, 21.6.2008.

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OJ C 171, 5.7.2008

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