Opinion of the Advocate General — ECLI:EU:C:2000:484
Date: 2000-09-21
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
Tax provisions — Harmonisation of laws — Indirect taxes on the raising of capital — 
Directive 69/335 — Capital duty and tax having the same characteristics as such a 
duty — Concept — Minimum tax on capital companies payable as an advance on the 
amount actually owing in respect of corporation tax — Not included 
(Council Directive 69/33S, Arts 4 and 10(a), (b) and (c)) 
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SUMMARY — CASE C-113/99 
On its proper construction, Article 10 of 
Directive 69/335 concerning indirect taxes 
on the raising of capital, which sets out the 
other indirect taxes having the same char­
acteristics as capital duty and the levying of 
which is prohibited, does not preclude the 
levying, as against insolvent capital com­
panies lacking own revenue or whose 
annual revenue does not exceed a certain 
amount, of a minimum tax payable for 
each quarter in respect of which those 
companies have unlimited liability to cor­
poration tax, in so far as such a tax does 
not have the same characteristics as the 
taxes prohibited by the provision in ques­
tion. 
Such a minimum tax on capital companies, 
which follows directly from the fact that a 
capital company has unlimited liability to 
corporation tax and constitutes an advance 
on the amount actually owing by way of 
corporation tax in respect of a given tax 
period, does not presuppose any transac­
tion involving the movement of capital or 
assets — whether in the form of transfer or 
increase — and therefore does not corre­
spond to any of the taxable transactions 
mentioned in Article 4 of the directive and 
to which Article 10(a) and (b) of the 
directive refers. Nor does it come under 
Article 10(c) inasmuch as it has no formal 
connection with the registration of compa­
nies subject to it, as registration of a 
company in the companies' register is not 
conditional on payment of that tax and 
non-payment thereof does not entail the 
company's removal from that register, and 
inasmuch as it is not connected to the 
completion of formalities required before 
the commencement of business, to which 
such a company may be subject by reason 
of its legal form. 
(see paras 19, 20, 22, 23, 26-28 and 
operative part) 
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