CELEX: 62009CN0035
Language: en
Date: 2009-01-28 00:00:00
Title: Case C-35/09: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 January 2009 — Ministero dell'Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza

4.4.2009   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 82/16
            
         Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 28 January 2009 — Ministero dell'Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza
   (Case C-35/09)
   (2009/C 82/29)
   Language of the case: Italian
   Referring court
   Corte Suprema di Cassazione
   Parties to the main proceedings
   
      Appellants: Ministero dell'Economia e delle Finanze, Agenzia delle Entrate
   
      Respondent: Paolo Speranza
   Questions referred
   
               1.
            
            
               Is Article 4(1)(c) of Directive 69/335/EEC (1), which provides that an increase in the capital of a capital company by contribution of assets of any kind is to be subject to capital duty, to be interpreted as meaning that an actual contribution is to be taxable, but not a mere decision to increase the share capital which remains essentially unimplemented?
            
         
               2.
            
            
               Is Article 4(1)(c) of Directive 69/335/EEC to be interpreted as meaning that the duty must be levied exclusively on the company to which the capital is contributed and not also on the public official who drafts or certifies the transaction?
            
         
               3.
            
            
               In any event, are the means of defence afforded to that public official by the Italian legislation consistent with the principle of proportionality, in light of the fact that, under Article 38 of Decree No 131/1986 of the President of the Republic, it is irrelevant whether the resolution to increase share capital is null and void or may be annulled, and repayment of the duty paid may be effected only after a civil judgment declaring the transaction null and void or annulling it has become final?
            
         
      (1)  OJ, English Special Edition, 1969 (II), p. 412.