# C_2004228EN.01002201.xml

| 11.9.2004 | EN | Official Journal of the European Union | C 228/22 |
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11.9.2004

EN

Official Journal of the European Union

C 228/22

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Reference for a preliminary ruling by the Kammarrätten i Sundsvall by order of that court of 17 June 2004 in the case of Margaretha Bouanich against the Skatteverket

(Case C-265/04)

(2004/C 228/43)

Reference has been made to the Court of Justice of the European Communities by order of the Kammarrätten i Sundsvall (Sundsvall Administrative Court of Appeal) (Sweden) of 17 June 2004, received at the Court Registry on 24 June 2004, for a preliminary ruling in the case of Margaretha Bouanich against the Skatteverket (Local Tax Board), Gävle office on the following questions:

| 1. | Do Articles 56 EC and 58 EC permit a Member State to tax a payment in respect of a share repurchase, paid out by a limited company in the Member State, in the same way as a dividend, without there being a right to deduct the cost of acquisition of the repurchased share, if the payment is made to a shareholder who is not domiciled or permanently resident in the Member State, whereas a share repurchase payment made by such a limited company to a shareholder domiciled or permanently resident in the Member State is instead taxed as if it were a capital gain, with a right to deduct the cost of acquisition of the repurchased share? |
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1.

Do Articles 56 EC and 58 EC permit a Member State to tax a payment in respect of a share repurchase, paid out by a limited company in the Member State, in the same way as a dividend, without there being a right to deduct the cost of acquisition of the repurchased share, if the payment is made to a shareholder who is not domiciled or permanently resident in the Member State, whereas a share repurchase payment made by such a limited company to a shareholder domiciled or permanently resident in the Member State is instead taxed as if it were a capital gain, with a right to deduct the cost of acquisition of the repurchased share?

| 2. | If the answer to Question 1 is no: When the double taxation agreement between the Member State in which the limited company has its registered office and the Member State in which the shareholder is resident provides, with reference to the commentaries on the OECD Model Tax Convention, that there is to be a lower rate of taxation than that applied to a share repurchase payment made to a shareholder in the first Member State and a shareholder in the second Member State and also permits a deduction corresponding to the nominal value of the repurchased shares, do the articles mentioned in the previous question permit, in those circumstances, a Member State to apply a rule such as that set out above? |
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2.

If the answer to Question 1 is no: When the double taxation agreement between the Member State in which the limited company has its registered office and the Member State in which the shareholder is resident provides, with reference to the commentaries on the OECD Model Tax Convention, that there is to be a lower rate of taxation than that applied to a share repurchase payment made to a shareholder in the first Member State and a shareholder in the second Member State and also permits a deduction corresponding to the nominal value of the repurchased shares, do the articles mentioned in the previous question permit, in those circumstances, a Member State to apply a rule such as that set out above?

| 3. | Do Articles 43 EC and 48 EC permit a Member State to apply a rule such as that set out above? |
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3.

Do Articles 43 EC and 48 EC permit a Member State to apply a rule such as that set out above?

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