Case C-487/09: Order of the Court (Eighth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Inmogolf SA v Dirección General de Tributos de la Consejería de Economia y Hacienda de la Comunidad Autónoma de Murcia (Article 104(3), first subparagraph, of the Rules of Procedure — Directive 69/335/EEC — Indirect taxes — Raising of capital — Transfer of securities — Capital of a company mostly made up of immovable property)
Date: 2010-10-06
Institutions: Court of Justice
Subjects: company law, indirect tax, interpretation of the law, investment company, share, tax on capital








C_2011080EN.01000801.xml










12.3.2011   


EN


Official Journal of the European Union


C 80/8





Order of the Court (Eighth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Inmogolf SA v Dirección General de Tributos de la Consejería de Economia y Hacienda de la Comunidad Autónoma de Murcia
(Case C-487/09) (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - Directive 69/335/EEC - Indirect taxes - Raising of capital - Transfer of securities - Capital of a company mostly made up of immovable property)
2011/C 80/13
Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings


Applicant: Inmogolf SA

Defendant: Dirección General de Tributos de la Consejería de Economía y Hacienda de la Comunidad Autónoma de Murcia

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 11(a) and 12(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ English Special Edition 1969 (II), p. 412) — Prohibition on the taxation of the creation, issue, admission to quotation on a stock exchange, making available on the market or dealing in securities — Derogation — Tax on the transfer of securities — National tax on the transfer of shares in a company in which at least 50 % of the assets comprise immovable property and, where as a result of the transfer, the person acquiring the securities obtains control of the company

Operative part of the order

Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, and, more particularly, Articles 11(a) and 12(1)(a) thereof, does not preclude legislation of a Member State, such as provided in Article 108(2) of Law 24/1988 of 28 July 1988 on stock markets, as amended by Law 18/91 of 6 June 1991, which, in order to prevent tax avoidance in the context of the transfer of immovable assets by companies, subjects transfers of securities to tax on capital transfers where those transfers of shares represent shares in the share capital of companies the assets of which are at least 50 % comprised of immovable property and where the purchaser has following such a transfer a position which allows it to exercise control over the entity at issue, even in cases where, firstly, there was no intention to evade tax and where, secondly, those companies are fully operational and the immovable properties cannot be dissociated from the economic activity carried out by those companies.


(1)  OJ C 63, 13.3.2010.