Opinion of the Advocate General — ECLI:EU:C:2005:325
Date: 2005-05-26
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Indirect taxation
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies (Council Directive 69/335, Arts 4 and 7) Article 4(2)(b) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directives 73/80, fixing common rates of capital duty, and 85/303, states that the Member States may subject to capital duty an increase in the assets of a capital company through the provision of services by a member which do not entail an increase in the company’s capital, but which may increase the value of the company’s shares. However, Article 7(1) of that directive exonerates from capital duty certain transactions which meet three conditions, namely (i) the transfer of all the assets and liabilities of a capital company, or one or more parts of its business, to one or more capital companies which are in the process of being formed or which are already in existence, (ii) the consideration consists exclusively of the allocation of shares, and (iii) the effective centre of management or the registered office of the companies taking part in the transaction is within the territory of a Member State. Where those conditions are met, Directive 69/335 precludes the charging of a proportional registration duty of 1% of the value of the transaction in the case of a ‘reverse’ merger, namely a merger by means of acquisition where all of the shares in the acquiring company are held by the company acquired. In so far as such a merger constitutes a contribution of capital to a capital company for the purposes of Article 4(2)(b) of that directive, Article 7(1) thereof exempts that merger from capital duty. (see paras 32, 40-42, 46-47, operative part)