Keywords

Summary



Keywords

1. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Art. 4(1)(g) and (h) and (3)(b))

2. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Arts 3(1), 8 and 9)

3. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Art. 3(1) and (2))

4. Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies

(Council Directive 69/335, Art. 3(2))

Summary

1. A Member State which charges capital duty on the transfer of the registered office or effective centre of management of a company from another Member State, in so far as the company concerned is not subject to capital duty in that other Member State, fails to fulfil its obligations under Directive 69/335 concerning indirect taxes on the raising of capital. The criterion of being ‘subject to’ duty does not correspond to the ‘capital company’ criterion prescribed in Article 4(1)(g) and (h) and (3)(b) of Directive 69/335. On the contrary, it allows capital duty to be charged in cases where the directive does not so envisage.

(see paras 30, 64, operative part)

2. A Member State which exempts co-ownership of vessels, shipping consortia and any form of shipping company from capital duty in circumstances where the conditions required by Articles 8 and 9 of Directive 69/335 in order for an exemption from capital duty to be granted are not satisfied fails to fulfil its obligations under Directive 69/335 concerning indirect taxes on the raising of capital. The directive does not provide for any other possibility of exempting a category of ‘capital companies’ within the meaning of Article 3(1) thereof.

(see paras 60-61, 64, operative part)

3. Agricultural cooperatives whose shares cannot be traded on a stock exchange and whose members can dispose of their shares only after a decision of the board and if the statutes authorise such disposal, which may only be to other members of the cooperative, do not fall within the scope of Article 3(1) of Directive 69/335 concerning indirect taxes on the raising of capital.

Since, however, they engage in an economic activity which, without being intended specifically to make financial gain, is nevertheless presumed to enhance the economic and social development of their members, such cooperatives nevertheless operate for profit and must be considered to be deemed capital companies under Article 3(2) of the directive.

(see paras 41-42)

4. Article 3(2) of Directive 69/335 concerning indirect taxes on the raising of capital leaves Member States free to limit the scope of the deeming clause that it contains, by allowing them to exempt certain categories of deemed capital companies from liability to capital duty. That derogation must be understood as referring to forms of company and not simply individual companies or companies operating in a given economic sector.

Therefore, a Member State is entitled to exempt agricultural cooperatives and associations and consortia thereof from capital duty if the agricultural cooperatives are subject to an autonomous statutory regime which includes specific rules concerning their structure, their formation and their organisation, with the result that they are not simply cooperatives that operate in a particular economic sector.

(see paras 44-47)