CELEX: 62010CN0126
Language: en
Date: 2010-03-10 00:00:00
Title: Case C-126/10: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 10 March 2010 — FOGGIA — Sociedade Gestora de Participações Sociais, SA v Secretário de Estado dos Assuntos Fiscais

22.5.2010   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 134/25
            
         Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 10 March 2010 — FOGGIA — Sociedade Gestora de Participações Sociais, SA v Secretário de Estado dos Assuntos Fiscais
   (Case C-126/10)
   2010/C 134/37
   Language of the case: Portuguese
   
      Referring court
   
   Supremo Tribunal Administrativo
   
      Parties to the main proceedings
   
   
      Appellant: FOGGIA — Sociedade Gestora de Participações Sociais, SA
   
      Respondent: Secretário de Estado dos Assuntos Fiscais
   
      Intervening Party: Ministério Público
   
      Questions referred
   
   
               (a)
            
            
               What are the meaning and effect of Article 11(1)(a) of Directive 90/434/EEC (1) of 23 July 1990 and, in particular, what is the meaning of ‘valid commercial reasons’ and ‘restructuring or rationalisation of the activities’ of companies participating in operations covered by Directive 90/434/EEC ?
            
         
               (b)
            
            
               Is the view taken by the tax authorities, that there are no serious commercial reasons for the acquiring company’s request to transfer tax losses, leading them to conclude that, from the acquiring company’s point of view, there was no apparent commercial interest in acquisition, since the acquired company had developed no activity as a holding company and had no financial holdings, and would consequently transfer only substantial losses, although the merger might represent a positive effect in terms of the cost structure of the group, compatible with that provision of Community law?
            
         
      (1)  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).