Case C-212/10
Logstor ROR Polska sp. z o.o.
v
Dyrektor Izby Skarbowej w Katowicach
(Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gliwicach)
(Taxation – Capital duty – Directive 69/335/EEC – Indirect taxes on the raising of capital – Taxation of a loan taken up by a capital company from a person entitled to a percentage of the profits of the same company – Right of a Member State to reintroduce a tax which was no longer in force at the date of its accession to the European Union)
Summary of the Judgment
Tax provisions – Harmonisation of laws – Indirect taxes on the raising of capital – Capital duty charged on capital companies
(Council Directive 69/335, Arts 4(2) and 7(2))
Article 4(2) of Directive 69/335 concerning indirect taxes on the raising of capital, as amended by Directive 85/303, must be interpreted as precluding a Member State from reintroducing a capital duty on a loan taken up by a capital company, if the creditor is entitled to a share in the profits of the company, when that Member State has previously waived the levying of that tax.
The words ‘may … continue to be subject to capital duty’, appearing in Article 4(2) of Directive 69/335 must be interpreted as implying that, in order to be capable of being subjected to capital duty by Member States, the transactions referred to in that paragraph must not only have been taxable, for the purposes of that provision, by virtue of the national law in force at 1 July 1984, but must also subsequently have been continuously subject to such taxation.
(see paras 37, 40, operative part)