Judgment of the Court (Third Chamber) of  19 January 2006  in Case C-265/04: Reference for a preliminary ruling from the Kammarrätten i Sundsvall in Margaretha Bouanich v Skatteverket (Direct taxation — Free movement of capital — Dividend tax — Share repurchase — Deductibility of the cost of acquisition of shares — Separate treatment of residents and non-residents — Agreement for the avoidance of double taxation)
Date: 2006-03-11
Institutions: Court of Justice
Subjects: company with share capital, interpretation of the law, share, shareholder, tax convention, tax law, tax relief

C 60/6

EN

Official Journal of the European Union

11.3.2006

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 12 January 2006

in Case C-246/04: Reference for a preliminary ruling from
in Turn- und Sportunion
the Verwaltungsgerichtshof

Waldburg v Finanzlandesdirektion für Oberösterreich (1)

(Sixth VAT Directive — Article 13(B)(b) and (C)(a) —
Exemption of leasing and letting of immovable property —
Right of option in favour of taxable persons — Non-profit-
making sports clubs — Conditions)

(2006/C 60/11)

(Language of the case: German)

In Case C-246/04: reference for a preliminary ruling under
Article 234 EC from the Verwaltungsgerichtshof
(Austria),
made by decision of 26 May 2004, received at the Court on 10
June 2004, in the proceedings between Turn- und Sportunion
Waldburg and Finanzlandesdirektion für Oberösterreich —
the Court (Third Chamber), composed of A. Rosas, President of
the Chamber,
J.-P. Puissochet, S. von Bahr, U. Lõhmus
(Rapporteur) and A. Ó Caoimh, Judges; M. Poiares Maduro,
Advocate General; R. Grass, Registrar, gave a judgment on 12
January 2006, in which it ruled:

1. Member States, when giving their taxable persons the right to opt
for
taxation under Article 13(C) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment, may make
a distinction by reference to types of transactions or groups of
taxable persons provided that they observe the general objectives
and principles of the Sixth Directive, in particular the principle of
fiscal neutrality and the requirement of correct, straightforward
and uniform application of the exemptions provided for;

2. It is for the national court to determine whether national legisla-
tion which, by exempting generally the transactions of non-profit-
making sports clubs, restricts their right to opt for taxation of
leasing and letting transactions exceeds the discretion conferred on
the Member States, having regard in particular to the principle of
fiscal neutrality and the requirement of correct, straightforward
and uniform application of the exemptions provided for.

(Third Chamber)

of 19 January 2006

in Case C-265/04: Reference for a preliminary ruling from
the Kammarrätten i Sundsvall in Margaretha Bouanich v
Skatteverket (1)

(Direct taxation — Free movement of capital — Dividend tax
— Share repurchase — Deductibility of the cost of acquisi-
tion of shares — Separate treatment of residents and non-
residents — Agreement for the avoidance of double taxation)

(2006/C 60/12)

(Language of the case: Swedish)

In Case C-265/04: Reference for a preliminary ruling under
Article 234 EC from the Kammarrätten i Sundsvall (Sweden ),
made by decision of 17 June 2004, received at the Court on 24
June 2004, in the proceedings Margaretha Bouanich v Skatte-
verket — the Court (Third Chamber), composed of A. Rosas,
President of the Chamber, J. Malenovský, S. von Bahr, A. Borg
Barthet and U. Lõhmus (Rapporteur), Judges; J. Kokott, Advo-
cate General; R. Grass, Registrar, gave a judgment on 19
January 2006, the operative part of which is as follows:

1. Articles 56 EC and 58 EC must be interpreted as precluding
national legislation, such as that at issue in the main proceedings,
which provides that a payment in respect of a share repurchase to
a non-resident shareholder in connection with a reduction in share
capital is taxed as a dividend without there being a right to deduct
the cost of acquisition of those shares, whereas the same payment
made to a resident shareholder is taxed as a capital gain with a
right to deduct the cost of acquisition.

2. Articles 56 EC and 58 EC must be interpreted as precluding
national legislation which derives from a double taxation agree-
ment, such as the Agreement between the Government of
the
French Republic and the Government of the Kingdom of Sweden
for the Avoidance of Double Taxation and the Prevention of Tax
Evasion in respect of Taxes on Income and Wealth, signed on 27
November 1990, which fixes a lower ceiling on the taxation of
dividends for non-resident shareholders than for resident share-
holders, and, by interpreting that agreement in the light of the
commentaries of the Organisation for Economic Cooperation and
Development on its applicable model convention, permits the
nominal value of such shares to be deducted from the share
repurchase payment, except where, under such national legislation,
non-resident shareholders are not treated less favourably than resi-
dent shareholders. It is for the national court to determine whether
that is the case in the specific circumstances of the main proceed-
ings.

(1) OJ C 228, 11.9.2004.

(1) OJ C 228, 11.09.2004.