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13.3.2010   

EN

Official Journal of the European Union

C 63/20

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 30 November 2009 — INMOGOLF SA v Administración General del Estado

(Case C-487/09)

2010/C 63/32

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: INMOGOLF SA

Defendant: Administración General del Estado

Questions referred

Having regard to the fact that Article 11(a) of Council Directive 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on the raising of capital (now Directive 2008/71/EC …) (2) prohibited the taxation of making available on the market or dealing in stocks, shares or other securities of the same type, and Article 12(1)(a) thereof only authorised Member States to charge duties on the transfer of securities, whether charged at a flat rate or not, and in the light of the fact that Article 108 of Law 24/1988 … on stock markets (in the wording of the 12th additional provision of Law 18/1991 …) nevertheless establishes a general exemption, from value added tax and from tax on capital transfers, for the transfer of securities, but subjects these transactions to tax on capital transfers, as transfers of assets for consideration, provided that they represent part of the capital of companies in which at least 50 % of the assets comprise immovable property and where the purchaser, as a result of that transfer, obtains a position which enables him to exercise control over the entity, without distinguishing between holding companies and companies which carry on an economic activity:

1.

Does Council Directive 69/335/EEC of 17 July 1969 preclude the automatic application of legislation of Member States, such as Article 108(2) of Law 24/1988 on stock markets, which taxes certain transfers of securities which conceal transfers of immovable assets, even if there has been no intention to avoid taxation?

If it is not necessary for there to be an intention to avoid taxation,

2.

Does Council Directive 69/335/EEC of 17 July 1969 preclude legislation such as … Law 24/1988, which establishes a charge on the acquisition of major shareholdings in companies whose assets comprise mainly immovable property, even though those companies are fully operative and the immovable assets cannot be disassociated from their economic activities?

(1)  OJ English Special Edition 1969 (II), p. 412.

(2)  OJ 2008 L 46, p. 11.