État belge v GIMLE SA.
Date: 2013-10-03
27. It is also apparent from that decision that the main proceedings are of a fiscal nature, in so far as an entry of shares in the accounts at their real value at the time of their acquisition would enable the Belgian tax authorities to tax the company concerned on the basis of the capital gain made on the difference between the real value of those shares and their acquisition price.
28. In this respect, the Court has already stated that the Fourth Directive is not designed to lay down the conditions in which the annual accounts of companies may or must serve as a basis for the determination by the tax authorities of the Member States of the basis for assessment and the amount of taxes, such as the corporate tax at issue in the main proceedings. However, it is in no way excluded that annual accounts might be used by Member States as a reference base for tax purposes (Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 70), and no provision of the Fourth Directive precludes Member States from correcting, for tax purposes, the effects of the accounting rules in that directive, in order to determine a taxable profit closer to the economic reality.
29. The Court notes that the Fourth Directive is intended to ensure the coordination of national provisions on the structure and content of annual accounts and reports and methods of valuation, for the purposes of protecting members and third parties. To that end, according to the third recital in its preamble, it is designed only to establish minimum conditions as to the extent of the financial information to be made available to the public ( BIAO , paragraph 69).
30. The Fourth Directive bases that coordination of the content of annual accounts on the principle that a true and fair view must be given, compliance with which is its primary objective ( Tomberger , paragraph 17; DE + ES Bauunternehmung , paragraph 26; and BIAO , paragraph 72). According to that principle, contained in Article 2(3) to (5) of that directive, annual accounts must give a true and fair view of the assets, financial position and the profit and loss of the company.
32. The Court has already had occasion to rule that the application of the principle that a true and fair view must be given must, as far as possible, be guided by the general principles contained in Article 31 of the Fourth Directive, within which the principle of making valuations on a prudent basis set out in Article 31(1)(c) is of particular importance ( Tomberger , paragraph 18).
33. In accordance with the provisions of Article 31(1)(c) of the Fourth Directive, which states the principle of making valuations on a prudent basis, taking account of all elements – profits made, charges, income, liabilities and losses – which actually relate to the financial year in question ensures observance of the requirement of a true and fair view ( Tomberger , paragraph 22, and BIAO , paragraph 123). In particular, Article 31(1)(c)(aa) provides that only profits made at the balance-sheet date may be included.
34. The principle that a true and fair view must be given must also be understood in the light of the principle contained in Article 32 of the Fourth Directive, pursuant to which the items shown in the annual accounts are to be valued based on the purchase price or production cost.
35. Under that provision, the true and fair view which the annual accounts of a company must give is based on a valuation of the assets not on the basis of their real value, but on the basis of their historical cost.