Official Journal of the European Union

(Case C-182/08) (<span class="super">1</span>)

(Freedom of establishment and free movement of capital - Corporation tax - Acquisition of shares in a capital company - Conditions for taking into account, when determining the acquirer’s tax base, the reduction in value of the shares resulting from the dividend distribution)

2009/C 267/31

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Glaxo Wellcome GmbH & Co.

Defendant: Finanzamt München II

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Articles 43 and 56 EC — Acquisition by a taxpayer who is entitled to a corporation tax credit of shares in a capital company which is fully taxable — National legislation providing for the taking into account, when determining the acquirer’s tax base, of depreciation of the shares by reason of the payment of dividends where the shares were acquired from a shareholder who is entitled to a corporation tax credit, but which excludes that reduction of the tax base where the shares were acquired from a shareholder who is not entitled to a tax credit of that kind

Operative part of the judgment

Article 73b of the EC Treaty (now Article 56 EC) must be interpreted as not precluding legislation of a Member State which excludes the reduction in value of shares as a result of the distribution of dividends from the basis of assessment for a resident taxpayer, where that taxpayer has acquired shares in a resident capital company from a non-resident shareholder, whereas, had the shares been acquired from a resident shareholder, such a reduction in value would have reduced the acquirer’s basis of assessment.

This applies in cases where such legislation does not exceed what is necessary to maintain a balanced allocation of the power to impose taxes between the Member States and to prevent wholly artificial arrangements which do not reflect economic reality and whose only purpose is unduly to obtain a tax advantage. It is for the national court to examine whether the legislation at issue in the main proceedings is limited to what is necessary in order to attain those objectives.

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(<span class="super">1</span>) OJ C 197, 2.8.2008.