Summary;Judgment — ECLI:EU:C:2022:1024
Date: 2022-12-22
Language of the case: Portuguese
Court formation: Fifth Chamber
Subject matter: Taxation;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-656/21 – 1 
Case C-656/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
29 October2021 
Referring court: 
Tribunal Arbitral Tributário (Centro de Arbitragem 
Administrativa – CAAD) (Portugal) 
Date of the decision to refer: 
7 October 2021 
Applicants: 
IM GESTÃO DE ATIVOS – SOCIEDADE GESTORA DE 
ORGANISMOS DE INVESTIMENTO COLETIVO, SA 
IMGA RENDIMENTO SEMESTRAL 
IMGA AÇÕES PORTUGAL CAT A 
IMGA AÇÕES AMÉRICA CAT A 
IMGA MERCADOS EMERGENTES 
and Others 
Defendant: 
Autoridade Tributária e Aduaneira 
  
Subject matter of the main proceedings 
This request for a preliminary ruling has arisen in the course of proceedings 
between IM GESTÃO DE ATIVOS – SOCIEDADE GESTORA DE 
ORGANISMOS DE INVESTIMENTO COLETIVO, S.A., and 31 funds managed 
by it (‘the applicants’), and the Autoridade Tributária e Aduaneira (Tax and 
Customs Authority; ‘the Tax Authority’), in which the former are seeking to have 
the assessment and self-assessment of the Imposto do Selo (Stamp Duty) for the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/21 
 
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2019 financial year declared unlawful and to obtain repayment of the amount 
paid, plus default interest. According to the applicants, double taxation occurred 
when it passed on fees charged on financial transactions. 
Subject matter and legal basis of the request for a preliminary ruling 
IMGA is a fund management company that manages various open-ended 
securities investment funds, which it markets through financial institutions (banks) 
which charge it marketing fees based on subscriptions for units in the funds it 
manages. The financial institutions include stamp duty in the invoices they issue 
for marketing fees, citing item 17(3)(4) of the Tabela Geral do Imposto do Selo 
(General Stamp Duty Schedule; ‘the TGIS’). IMGA subsequently allocates the 
marketing fees to the funds, passing on the amount invoiced by the bank for 
marketing units in each fund to the relevant fund, charging stamp duty a second 
time on the fees. 
Questions referred for a preliminary ruling 
1) Does Article 5(2) of Directive 2008/7/EC preclude national legislation, such 
as item 17(3)(4) of the Código do Imposto do Selo (Stamp Duty Code), under 
which stamp duty is levied on fees which banks charge open-ended securities 
investment fund management companies for gaining new subscriptions for units, 
that is, for obtaining new inflows of capital for the investment funds in the form of 
new subscriptions for units issued by the funds? 
2) Does Article 5(2) of Directive 2008/7/EC preclude national legislation under 
which stamp duty is levied on the management fees charged to open-ended 
securities investment funds by management companies, in so far as those 
management fees include the fees which the banks charge the fund management 
companies for the aforementioned activity? 
Provisions of European Union law relied on 
Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on 
the raising of capital (OJ 2008 L 46, p. 11): Article 5. 
Provisions of national law relied on 
Decreto-Lei n.º 287/2003 de 12 de novembro (Decree-Law No 287/2003 of 
12 November 2003) amending the Código do Imposto do Selo (Stamp Duty 
Code): Article 1 and item 17 of the General Stamp Duty Schedule. 
‘Article 1 
Scope 
IM GESTÃO DE ATIVOS AND OTHERS 
 
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1 – Stamp duty is payable on all acts, contracts, documents, securities, paper and 
other transactions or legal situations established in the General Schedule, 
including transfers of assets for no consideration. 
… 
Item 17: 
17 Financial transactions: 
… 
17.3 Transactions performed or brokered by credit institutions, financial 
corporations or other entities deemed by law to be such institutions or 
corporations, and any other financial institution – on the amount charged: 
… 
17.3.4 – Other fees and charges for financial services, including charges on card 
payment transactions – 4%.’ 
Brief presentation of the facts and procedure in the main proceedings 
1 IMGA is a management company and legal representative of open-ended 
securities investment funds. 
2 Since it is purely a fund management company, it undertakes little marketing on 
its own behalf, as it is not economically viable for it to maintain a national 
structure to market subscriptions for units in the open-ended funds whose assets it 
manages to the public. 
3 IMGA consequently relies on financial institutions, which have a nationwide 
network of branches and considerable experience in financial intermediation and 
in placing securities with the public, to publicise its investment funds (its 
products) and to market units in its funds. 
4 From January to December 2019 various financial institutions (BCP, 
ACTIVOBANK, CCCAM, BANCO BIC) marketed units in various funds 
managed by IMGA. 
5 Those institutions charged the fund management company, IMGA, rather than the 
funds themselves, for marketing the fund units. 
6 The financial institutions included an amount for stamp duty in their invoices, 
citing item 17(3)(4) of the TGIS. 
7 In 2019 IMGA charged the funds certain management fees which included the 
amount of the ‘fees charged by the banks for marketing the units (minus the stamp 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/21 
 
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duty assessed by the banks on the fees) amounting to EUR 8 752 232.43, on 
which IMGA also calculated and paid stamp duty to the State (together with 
stamp duty on the actual management fee) at a rate of 4% as stipulated in item 
17(3)(4) of the TGIS, which amounted to EUR 350 089.30’. 
8 IMGA and the funds lodged an internal administrative appeal those assessments. 
9 That administrative appeal was dismissed by decision of 10 November 2020 by 
the Chefe de Divisão de Serviço Central da Unidade dos Grandes Contribuintes 
(Head of Division of the Central Office of the Large Taxpayers Unit). 
Main arguments of the parties in the main proceedings 
10 The applicants do not agree with either the first amount of stamp duty charged by 
the banks to the management company IMGA or the second payment of duty 
which occurred when IMGA passed on the costs to the funds. 
11 They accept that the fees charged by the banks for marketing units in the funds 
fall within the scope of item 17(3)(4). However, they maintain that since stamp 
duty is collected by the banks in the invoices they issue for their marketing fees, 
and stamp duty is subsequently paid when the fees are passed on to the funds, this 
gives rise to ‘double taxation of the same transaction’ which, in their view, is 
unlawful, and they consider that the charging of the fees in question by the banks 
is in breach of ‘the prohibition on taxation established in Article 5(2) of Council 
Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising 
of capital’. 
12 First, they consider it is unlawful for stamp duty to be levied on ‘that part of the 
fee charged by IMGA to the funds which reflects the marketing fees (and the 
corresponding stamp duty) which have already been invoiced by the banks, on 
which the banks have already levied stamp duty’, since this constitutes double 
taxation of a single supply of services. 
13 Secondly, the applicants argue that ‘in addition, that part of the stamp duty should 
be declared unlawful and void, since it is also contrary to EU law … and this 
ground of annulment also applies to the stamp duty originally assessed by the 
banks on the marketing fees’. 
14 In summary: 
– Item 17(3)(4) is a general legislative provision which indiscriminately 
subjects all financial activities on which tax has not already been paid, 
including financial activities or services involved in the marketing of fund 
units, to indirect taxation in the form of stamp duty; 
IM GESTÃO DE ATIVOS AND OTHERS 
 
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– However, there is nothing in this item to suggest that the intention is that a 
single specific act of marketing units should be subject to multiple instances 
of stamp duty; 
– In the present case, tax on that particular financial service has already been 
paid by the suppliers, that is, the banks, which assessed and collected the 
stamp duty due on the amount payable for their services; 
– There is no legal basis for levying stamp duty for a second time on the value 
of that specific financial service or transaction, still less for stamp duty to be 
levied on the stamp duty that has already been included, on the pretext that 
the fund management company has passed on the charge in respect of the 
units marketed by the banks to each of the funds it manages; 
– In their view, it is arbitrary and contrary to the neutrality which any tax 
seeks to achieve for it to be possible to tax the same financial transaction 
several times purely because the amount involved has been passed on 
several times so as to ensure that the financial burden is borne by the 
beneficiary or recipient of that single financial transaction; 
– There is one single service and, therefore, when the cost is subsequently 
passed on, this is simply a financial settlement between institutions designed 
to ensure that, ultimately, the cost of that single financial service or 
transaction and the corresponding stamp duty is borne only by the entity or 
entities which are, objectively, the beneficiaries of that service; 
– The stamp duty at issue in these proceedings is a one-off tax, in other words, 
it is assessed only once, not on the value added but on the total value of the 
transaction or service; 
– In the context of the question at issue here, concerning double taxation, it is 
not disputed that stamp duty is payable on the management fee which IMGA 
charges the funds; the only dispute is over whether duty is payable on the 
part of the fee that reflects the marketing fee (and the corresponding stamp 
duty) previously invoiced by the banks, on which the banks had already 
levied stamp duty, amounting to a payment of duty of EUR 350 078.85. 
15 In line with the decision on the administrative appeal brought against the 
assessments, the Tax Authority maintains there is no double taxation because the 
marketing fees charged by the banks and the management fee charged to the funds 
by IMGA are separate transactions. 
16 It is clear from items 17(3) and 17(3)(4) of the TGIS that, in the case of fees for 
financial services, the taxable amount on which stamp duty is levied is ‘the 
amount charged’, and therefore there is no other express legal basis that makes it 
possible to conclude that a different amount should be used for the purposes of 
levying the tax referred to in item 17(3)(4). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-656/21 
 
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17 It should also be noted that there is no provision in Portuguese law which excludes 
the possibility of subjecting the same taxable event to double taxation and 
therefore, even if there were double taxation, this would not be grounds for 
concluding that there is any illegality. 
18 However, the levying of stamp duty on the fees charged by the banks and also on 
the amount that is passed on in respect of those fees does not give rise to double 
taxation, because the taxable persons and the holders of the economic interests are 
different in each case. 
19 In the present case, in each situation there are two transactions, which relate to 
different financial services: one performed by the bank, which provides a service 
to IMGA; and the other performed by IMGA, which provides a service to each of 
the funds. 
20 Each of these transactions falls within the scope of item 17(3)(4) and has a 
different taxable person: IMGA in respect of the fees charged by the bank, and 
each of the funds in respect of the fees charged by IMGA. 
21 The holders of the economic interests are also different: IMGA is the holder of the 
economic interest for the purposes of the stamp duty on the fees charged by the 
banks, which provide a service to it; and the funds are the holders of the economic 
interest for the purposes of the stamp duty on the management fees charged by 
IMGA, as they are its clients. 
22 Therefore, the question that arises is not whether there is double taxation when 
stamp duty is levied twice on the same activity of marketing the funds, but 
whether the Stamp Duty Code and the TGIS exclude the possibility of passing on 
fees on which stamp duty has already been levied. 
23 The answer to that question must be ‘no’, given that stamp duty is levied on the 
financial transactions referred to in item 17(3)(4), and that each time funds are 
marketed this gives rise to two transactions that fall within the provisions of that 
item: the provision of services by the bank to IMGA and the supply of services by 
IMGA to the fund. 
24 Moreover, in each of these situations the holder of the economic interest, on 
whom the corresponding tax burden falls, has the ability to pay, which is the 
principle underlying item 17(3)(4), and therefore there are no grounds for 
adopting a narrow interpretation. 
25 The funds do not pay stamp duty twice on the value of the bank fees that are 
passed on to them; they pay it only once, when those fees are passed on and the 
stamp duty is assessed on the total amount of the management fee. 
26 With regard to the economic substance of the taxable events, a solution that 
exempted the funds from any tax burden in relation to a service provided by the 
banks which is also in their interest would be illogical and hard to reconcile with 
IM GESTÃO DE ATIVOS AND OTHERS 
 
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the constitutional principle that taxation should be proportionate to the ability to 
pay, which is intrinsic to the principle of equality. 
27 For these reasons, the contested tax amounts are not vitiated by alleged double 
taxation, or by an error in interpreting item 17(3)(4). 
Brief summary of the basis for the request for a preliminary ruling  
The referring court considers it necessary to refer the questions set out above for a 
preliminary ruling, because the applicants contend, in summary, that Article 5(2) 
of Directive 2008/7/EC is a rule which establishes a very broad prohibition (on 
taxation), from which it is clear that there may be no indirect taxation on the 
creation, issue, making available on the market, dealing, or any related activities, 
in shares, other securities of the same nature, bonds and securities in general. 
This is a general rule which prohibits all forms of indirect taxation of this type. 
The activity carried out by the banks or other financial institutions, which is aimed 
at persuading potential investors to subscribe for new units in funds, involves not 
only, by its very nature, the creation and issue of such securities (units), but also, 
by definition, making such securities available on the market, and dealing in and 
issuing such securities. Consequently, it may not be subject to any form of indirect 
taxation, in accordance with the provision or prohibition in the aforementioned 
Article 5(2) of Directive 2008/7/EC. 
It is clear that, in the light of all the applicable law, the general national rule 
contained in item 17(3)(4) of the TGIS is contrary to the rule in the directive, 
meaning that the taxation established in item 17(3)(4) of the TGIS is unlawful 
because it breaches a superior rule of law in connection with the specific category 
identified in this case, namely the financial activity of ‘marketing new units in 
funds’. 
The Tax Authority considers that, in this case, stamp duty is not levied on ‘the 
creation, issue, admission to quotation on a stock exchange, making available on 
the market or dealing in …’ units in the funds managed by IMGA, but only on the 
remuneration charged to IMGA by the banks under what are generally termed 
‘marketing fees’ for the transfer or sale of units to investors. 
The tax is levied as the result of a voluntary decision by IMGA, which opted to 
market the units, that is, to sell them indirectly, engaging the services of various 
credit institutions in order to do so; as is natural and entirely justified, those 
institutions sought payment in the form of a fee for the financial service they 
provided, on which, naturally, they levied the stamp duty due by law. The 
marketing fees (plus the corresponding stamp duty) which the credit institutions 
charged IMGA for the financial services used by IMGA to sell the units cannot be 
considered to fall within the scope of Directive 2008/7/EC.