# C_2005031EN.01000501.xml

| 5.2.2005 | EN | Official Journal of the European Union | C 31/5 |
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5.2.2005

EN

Official Journal of the European Union

C 31/5

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Reference for a preliminary ruling by the Gerechtshof Arnhem, by decision of that court of 27 October 2004 in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo

(Case C-470/04)

(2005/C 31/11)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Gerechtshof Arnhem, (Court of Appeal, Arnhem) (Netherlands) of 27 October 2004 received at the Court Registry on 2 November 2004, for a preliminary ruling in the case of N. against Inspecteur van de Belastingdienst Oost/Kantoor Almelo on the following questions:

| 1.1.1 | Can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 18 EC, solely on the ground that the serving of a tax assessment linked with his departure entails, or may entail, an obstacle to that departure? |
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1.1.1

Can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 18 EC, solely on the ground that the serving of a tax assessment linked with his departure entails, or may entail, an obstacle to that departure?

| 1.1.2 | If the answer to question 1.1.1 is negative, can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 43 EC if it is not clear or plausible from the outset that he will be pursuing in the other Member State an economic activity as referred to in that article? Is it relevant to the answer to the previous question that that activity will be pursued within a foreseeable period? If so, how long may that period be? |
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1.1.2

If the answer to question 1.1.1 is negative, can a resident of a Member State who ceases to reside in that Member State in order to establish himself in another Member State rely, in proceedings against the Member State which he is leaving, on the application of Article 43 EC if it is not clear or plausible from the outset that he will be pursuing in the other Member State an economic activity as referred to in that article? Is it relevant to the answer to the previous question that that activity will be pursued within a foreseeable period? If so, how long may that period be?

| 1.1.3 | If the answer to question 1.1.1 or 1.1.2 is affirmative, do Articles 18 or 43 EC preclude the relevant Dutch legislation by virtue of which an assessment to income tax and social insurance contributions is served in respect of the deemed enjoyment of profit from a substantial shareholding, solely on the ground that a resident of the Netherlands who ceases to be a domestic taxpayer because he has moved his place of residence to another Member State is deemed to have disposed of those of his shares which form part of a substantial holding? |
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1.1.3

If the answer to question 1.1.1 or 1.1.2 is affirmative, do Articles 18 or 43 EC preclude the relevant Dutch legislation by virtue of which an assessment to income tax and social insurance contributions is served in respect of the deemed enjoyment of profit from a substantial shareholding, solely on the ground that a resident of the Netherlands who ceases to be a domestic taxpayer because he has moved his place of residence to another Member State is deemed to have disposed of those of his shares which form part of a substantial holding?

| 1.1.4 | If the answer to question 1.1.3 is affirmative because of the fact that security has to be provided to enable a deferment of payment of the tax assessed, can the existing obstacle then be removed with retroactive effect through the release of the security provided? Does the answer to this question depend on whether the security is released on the basis of legislation or a rule of policy, whether or not adopted in the context of enforcement? Does the answer to this question depend on whether compensation is provided for any loss incurred as a result of the provision of security? |
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1.1.4

If the answer to question 1.1.3 is affirmative because of the fact that security has to be provided to enable a deferment of payment of the tax assessed, can the existing obstacle then be removed with retroactive effect through the release of the security provided? Does the answer to this question depend on whether the security is released on the basis of legislation or a rule of policy, whether or not adopted in the context of enforcement? Does the answer to this question depend on whether compensation is provided for any loss incurred as a result of the provision of security?

| 1.1.5 | If the answer to question 1.1.3 is affirmative and the answer to the first question in 1.1.4 is negative, can the obstacle which then exists be justified? |
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1.1.5

If the answer to question 1.1.3 is affirmative and the answer to the first question in 1.1.4 is negative, can the obstacle which then exists be justified?

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