# C_2022424EN.01002101.xml

| 7.11.2022 | EN | Official Journal of the European Union | C 424/21 |
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7.11.2022

EN

Official Journal of the European Union

C 424/21

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Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 14 July 2022 — NO v Autoridade Tributária e Aduaneira

(Case C-472/22)

(2022/C 424/27)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: NO

Defendant: Autoridade Tributária e Aduaneira

Questions referred

| 1. | Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies incorporated under national law, but not to transfers of shares in companies incorporated in another Member State? |
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1.

Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies incorporated under national law, but not to transfers of shares in companies incorporated in another Member State?

| 2. | Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies which have their actual domicile in the national territory, but not to transfers of shares in companies which have their actual domicile in the territory of another Member State? |
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2.

Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies which have their actual domicile in the national territory, but not to transfers of shares in companies which have their actual domicile in the territory of another Member State?

| 3. | Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies with tax residence in the national territory, but not to transfers of shares in companies with tax residence in the territory of another Member State? |
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3.

Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies with tax residence in the national territory, but not to transfers of shares in companies with tax residence in the territory of another Member State?

| 4. | Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies which conduct their business in the national territory, but not to transfers of shares in companies which conduct their business in the territory of another Member State? |
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4.

Are Article 49 TFEU (right of establishment) and/or Article 63 TFEU (free movement of capital) to be interpreted as precluding a legal provision or a fiscal practice of a Member State whereby, for the purposes of personal income tax in that Member State, a tax advantage, consisting in taxation of 50 % of the gain resulting from the transfer of company shares, is applied to transfers of shares in companies which conduct their business in the national territory, but not to transfers of shares in companies which conduct their business in the territory of another Member State?

| 5. | Is the principle of prohibition of abusive practices to be interpreted as applying to a transfer of company shares such as that in the present case, which, in essence, has a result equivalent to a dividend payment, and the legal form of which was chosen by the taxpayer with the fundamental aim of obtaining a tax advantage deriving from national law and strictly applicable to capital gains on securities, in circumstances such as those of the present case, in which the grant to the taxpayer of the tax advantage concerned depends on whether that taxpayer is able to rely on and exercise the right of establishment under Article 49 TFEU and/or free movement of capital under Article 63 TFEU? |
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5.

Is the principle of prohibition of abusive practices to be interpreted as applying to a transfer of company shares such as that in the present case, which, in essence, has a result equivalent to a dividend payment, and the legal form of which was chosen by the taxpayer with the fundamental aim of obtaining a tax advantage deriving from national law and strictly applicable to capital gains on securities, in circumstances such as those of the present case, in which the grant to the taxpayer of the tax advantage concerned depends on whether that taxpayer is able to rely on and exercise the right of establishment under Article 49 TFEU and/or free movement of capital under Article 63 TFEU?

| 6. | Is the principle of prohibition of abusive practices to be interpreted as precluding a taxpayer from relying on and exercising the right of establishment (under Article 49 TFEU) or the free movement of capital (under Article 63 TFEU) in order to benefit from the tax advantage provided for in national law for capital gains arising from the transfer of company shares, when, with the main objective of benefiting from that tax advantage, that taxpayer has carried out a transaction, which, in essence, has a result equivalent to a dividend payment, such as a transfer of shares? |
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6.

Is the principle of prohibition of abusive practices to be interpreted as precluding a taxpayer from relying on and exercising the right of establishment (under Article 49 TFEU) or the free movement of capital (under Article 63 TFEU) in order to benefit from the tax advantage provided for in national law for capital gains arising from the transfer of company shares, when, with the main objective of benefiting from that tax advantage, that taxpayer has carried out a transaction, which, in essence, has a result equivalent to a dividend payment, such as a transfer of shares?

| 7. | If the answer to the previous question is in the affirmative, can a taxpayer invoke legal certainty or legitimate expectations in order to challenge a refusal to recognise the right of establishment and/or free movement of capital in line with the principle of prohibition of abusive practices and, thus, legitimise that abusive practice? |
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7.

If the answer to the previous question is in the affirmative, can a taxpayer invoke legal certainty or legitimate expectations in order to challenge a refusal to recognise the right of establishment and/or free movement of capital in line with the principle of prohibition of abusive practices and, thus, legitimise that abusive practice?

| 8. | Is the principle of prohibition of abusive practices to be interpreted as meaning that its application depends on verification of the conditions for the application of the general anti-abuse regulations under national law? |
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8.

Is the principle of prohibition of abusive practices to be interpreted as meaning that its application depends on verification of the conditions for the application of the general anti-abuse regulations under national law?

| 9. | Is the principle of prohibition of abusive practices to be interpreted as meaning that its application depends on it being invoked by the national authorities? |
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9.

Is the principle of prohibition of abusive practices to be interpreted as meaning that its application depends on it being invoked by the national authorities?

| 10. | Is the principle of prohibition of abusive practices to be interpreted as meaning that its application depends on compliance by the national tax authorities with the procedure laid down for the application of the general anti-abuse regulations under national law? |
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10.

Is the principle of prohibition of abusive practices to be interpreted as meaning that its application depends on compliance by the national tax authorities with the procedure laid down for the application of the general anti-abuse regulations under national law?

| 11. | Given that the jurisdiction of the national court is limited to assessing the legality of tax measures and deciding whether to annul or to uphold them in the legal order, without replacing the Tax Authority, is the principle of prohibition of abusive practices to be interpreted as meaning that the Arbitration Tribunal has jurisdiction to reclassify/redefine/requalify the abusive transaction and apply the relevant national legislation to the transaction which would exist in its place? |
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11.

Given that the jurisdiction of the national court is limited to assessing the legality of tax measures and deciding whether to annul or to uphold them in the legal order, without replacing the Tax Authority, is the principle of prohibition of abusive practices to be interpreted as meaning that the Arbitration Tribunal has jurisdiction to reclassify/redefine/requalify the abusive transaction and apply the relevant national legislation to the transaction which would exist in its place?

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