Case C-207/11

3D I Srl

v

Agenzia delle Entrate — Ufficio di Cremona

(Reference for a preliminary ruling from the Commissione tributaria regionale di Milano (Italy))

‛Taxation — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Articles 2, 4 and 9 — Transfer of assets — Taxation of the capital gains obtained by the transferring company at the time of the transfer of assets — Deferral of taxation — Requirement that a reserve fund for the suspended tax corresponding to the value of the capital gains obtained be carried over in the balance sheet of the transferring company’

Summary — Judgment of the Court (First Chamber), 19 December 2012

Approximation of laws — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Directive 90/434 — Transfer of a branch of activity — Deferral of the taxation of the capital gain, relating to the securities received in exchange for that transfer, obtained by the transferring company — Condition — Creation by the transferring company of an appropriate reserve fund carried over in its own balance sheet — Lawfulness

(Council Directive 90/434, Arts 2, 4 and 9)

Articles 2, 4 and 9 of Directive 90/434 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States must be interpreted as not precluding the consequence of a transfer of assets being the taxation of the transferring company on the capital gain arising from that transfer, unless the transferring company carries over in its own balance sheet an appropriate reserve fund equivalent to the capital gain arising upon that transfer.

While Directive 90/434 sets out the conditions governing the deferral, for the receiving company, of taxation of the capital gains relating to the business transferred, it does not, by contrast, establish the conditions which govern the transferring company’s ability to benefit from deferral of taxation of the capital gains relating to the securities representing the capital of the receiving company and issued in exchange for the transfer of assets. In particular, it does not address the question as to what value the transferring company must attribute to those securities.

It follows from the foregoing, not that Directive 90/434 prohibits the Member States from setting such conditions, but that that directive leaves it to the Member States’ discretion as to whether or not the fiscal neutrality from which the transferring company benefits is to be made subject to obligations to valuate the securities received in exchange, such as maintaining the continuity of values for tax purposes, provided that those obligations do not have the consequence that the issue of those securities during the transfer of assets itself gives rise to taxation of the capital gains relating to those assets.

(see paras 29, 30, 35, operative part)

Case C-207/11

3D I Srl

v

Agenzia delle Entrate — Ufficio di Cremona

(Reference for a preliminary ruling from the Commissione tributaria regionale di Milano (Italy))

‛Taxation — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Articles 2, 4 and 9 — Transfer of assets — Taxation of the capital gains obtained by the transferring company at the time of the transfer of assets — Deferral of taxation — Requirement that a reserve fund for the suspended tax corresponding to the value of the capital gains obtained be carried over in the balance sheet of the transferring company’

Summary — Judgment of the Court (First Chamber), 19 December 2012

Approximation of laws — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Directive 90/434 — Transfer of a branch of activity — Deferral of the taxation of the capital gain, relating to the securities received in exchange for that transfer, obtained by the transferring company — Condition — Creation by the transferring company of an appropriate reserve fund carried over in its own balance sheet — Lawfulness

(Council Directive 90/434, Arts 2, 4 and 9)

Articles 2, 4 and 9 of Directive 90/434 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States must be interpreted as not precluding the consequence of a transfer of assets being the taxation of the transferring company on the capital gain arising from that transfer, unless the transferring company carries over in its own balance sheet an appropriate reserve fund equivalent to the capital gain arising upon that transfer.

While Directive 90/434 sets out the conditions governing the deferral, for the receiving company, of taxation of the capital gains relating to the business transferred, it does not, by contrast, establish the conditions which govern the transferring company’s ability to benefit from deferral of taxation of the capital gains relating to the securities representing the capital of the receiving company and issued in exchange for the transfer of assets. In particular, it does not address the question as to what value the transferring company must attribute to those securities.

It follows from the foregoing, not that Directive 90/434 prohibits the Member States from setting such conditions, but that that directive leaves it to the Member States’ discretion as to whether or not the fiscal neutrality from which the transferring company benefits is to be made subject to obligations to valuate the securities received in exchange, such as maintaining the continuity of values for tax purposes, provided that those obligations do not have the consequence that the issue of those securities during the transfer of assets itself gives rise to taxation of the capital gains relating to those assets.

(see paras 29, 30, 35, operative part)