# C_2009220EN.01002802.xml

| 12.9.2009 | EN | Official Journal of the European Union | C 220/28 |
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12.9.2009

EN

Official Journal of the European Union

C 220/28

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Action brought on 15 July 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-269/09)

2009/C 220/54

Language of the case: Spanish

Parties

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and F. Jimeno Fernández, acting as Agents)

Applicant:

Defendant: Kingdom of Spain

Defendant:

Form of order sought

Form of order sought

| — | declare that by adopting and maintaining in force, in Article 14 of Law No 35/2006 of 28 November 2006 on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, a provision under which taxpayers who transfer their residence abroad are required to include any income not yet charged to tax in the tax base for the last tax year in which they were considered to be resident taxpayers, the Kingdom of Spain has failed to fulfil its obligations under Articles 19 EC, 38 EC and 43 EC and Articles 28 and 31 of the EEA Agreement; |
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declare that by adopting and maintaining in force, in Article 14 of Law No 35/2006 of 28 November 2006 on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, a provision under which taxpayers who transfer their residence abroad are required to include any income not yet charged to tax in the tax base for the last tax year in which they were considered to be resident taxpayers, the Kingdom of Spain has failed to fulfil its obligations under Articles 19 EC, 38 EC and 43 EC and Articles 28 and 31 of the EEA Agreement;

| — | order the Kingdom of Spain to pay the costs. |
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order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | Under Article 14 of the Spanish Law on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, revenue is subject to tax in the year in which it is received. Nevertheless, Article 14(2) contains special rules which make it possible to impute certain types of income to different tax periods. In cases in which a taxpayer transfers his residence abroad, however, Article 14(3) provides that all income not yet charged to tax is to be included in the tax base for the last tax year in which the taxpayer concerned was considered to be resident. |
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1.

Under Article 14 of the Spanish Law on personal income tax and partially amending the laws on the taxation of corporations, non-residents’ income and wealth, revenue is subject to tax in the year in which it is received. Nevertheless, Article 14(2) contains special rules which make it possible to impute certain types of income to different tax periods. In cases in which a taxpayer transfers his residence abroad, however, Article 14(3) provides that all income not yet charged to tax is to be included in the tax base for the last tax year in which the taxpayer concerned was considered to be resident.

| 2. | The Commission submits that the Spanish legislation allows discriminatory treatment in cases in which an individual transfers his residence outside Spain and that Spanish law should apply the same rule irrespective of whether the individual maintains his residence on Spanish territory. |
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2.

The Commission submits that the Spanish legislation allows discriminatory treatment in cases in which an individual transfers his residence outside Spain and that Spanish law should apply the same rule irrespective of whether the individual maintains his residence on Spanish territory.

| 3. | The provision concerned infringes the principle of free movement of persons laid down in Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement. |
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3.

The provision concerned infringes the principle of free movement of persons laid down in Articles 18 EC, 39 EC and 43 EC and Articles 28 and 31 of the EEA Agreement.

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