CELEX: C2007/199/09
Language: en
Date: 2007-08-25 00:00:00
Title: Case C-321/05: Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Hans Markus Kofoed v Skatteministeriet (Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares — National decision to tax an exchange of shares — Exchange of shares — Distribution of a dividend shortly afterwards — Abuse of rights)

25.8.2007   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 199/6
            
         Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Hans Markus Kofoed v Skatteministeriet
   (Case C-321/05) (1)
   
   (Directive 90/434/EEC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares - National decision to tax an exchange of shares - Exchange of shares - Distribution of a dividend shortly afterwards - Abuse of rights)
   (2007/C 199/09)
   Language of the case: Danish
   Referring court
   Østre Landsret
   Parties to the main proceedings
   
      Applicant: Hans Markus Kofoed
   
      Defendant: Skatteministeriet
   Re:
   Preliminary ruling — Østre Landsret — Interpretation of Article 2(d) 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) — Exchange of shares followed immediately by a distribution of dividends by the acquiring company, the amount of which exceeds 10 % of the nominal value of the shares exchanged
   Operative part of the judgment
   In circumstances such as those in the main proceedings, a dividend, such as that paid, is not to be included in the calculation of the ‘cash payment’ provided for in Article 2(d) 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 and that, accordingly, an exchange of shares such as that in issue constitutes an ‘exchange of shares’ within the meaning of Article 2(d) of that directive.
   Consequently, Article 8(1) of Directive 90/434 precludes, in principle, the taxation of such an exchange of shares, unless national rules on abuse of rights, tax evasion or tax avoidance may be interpreted in accordance with Article 11(1)(a) of Directive 90/434 and thus justify the taxation of that exchange.
   
      (1)  OJ C 257, 15.10.2005.