Case C-126/10: Judgment of the Court (Fifth Chamber) of 10 November 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — FOGGIA — Sociedade Gestora de Participações Sociais SA v Secretário de Estado dos Assuntos Fiscais (Approximation of laws — 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 — Article 11(1)(a) — Valid commercial reasons — Restructuring or rationalisation of the activities of companies participating in operations — Definition)
Date: 2011-11-10
Institutions: Court of Justice
Subjects: Portugal, merger, tax system








C_2012025EN.01000801.xml










28.1.2012   


EN


Official Journal of the European Union


C 25/8






Judgment of the Court (Fifth Chamber) of 10 November 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — FOGGIA — Sociedade Gestora de Participações Sociais SA v Secretário de Estado dos Assuntos Fiscais
(Case C-126/10) (1)

(Approximation of laws - 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 - Article 11(1)(a) - Valid commercial reasons - Restructuring or rationalisation of the activities of companies participating in operations - Definition)
(2012/C 25/12)
Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings


Applicant: FOGGIA — Sociedade Gestora de Participações Sociais SA

Defendant: Secretário de Estado dos Assuntos Fiscais

Intervener: Ministério Público

Re:

Reference for a preliminary ruling — Supremo Tribunal Administrativo — Interpretation of Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1) — Operations pursuing the ends of tax evasion or avoidance — Meaning of ‘valid commercial reasons’ and ‘restructuring or rationalisation of the activities of companies participating in operations’

Operative part of the judgment

Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, is to be interpreted as meaning that, in the case of a merger operation between two companies of the same group, the fact that, on the date of the merger operation, the acquired company does not carry out any activity, does not have any financial holdings and transfers to the acquiring company only substantial tax losses of undetermined origin, even though that operation has a positive effect in terms of cost structure savings for that group, may constitute a presumption that the operation has not been carried out for ‘valid commercial reasons’ within the meaning of Article 11(1)(a). It is incumbent on the national court to verify, in the light of all the circumstances of the dispute on which it is required to rule, whether the constituent elements of the presumption of tax evasion or avoidance, within the meaning of that provision, are present in the context of that dispute.


(1)  OJ C 134, 22.5.2010.