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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Hollmann (Principles of Community law) [2007] EUECJ C-443/06 (11 October 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C44306.html Cite as: [2007] ECR I-8491, [2007] EUECJ C-443/06, [2007] EUECJ C-443/6 |
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(Direct taxation Taxation of capital gains on immovable property Free movement of capital Basis of assessment Discrimination Cohesion of the tax system)
In Case C-443/06,
REFERENCE for a preliminary ruling under Article 234 EC from the Supremo Tribunal Administrativo (Portugal), made by decision of 28 September 2006, received at the Court on 27 October 2006, in the proceedings
Erika Waltraud Ilse Hollmann
Fazenda Pública,
intervening party:
Ministério Público,
composed of K. Lenaerts, President of the Chamber, G. Arestis (Rapporteur), R. Silva de Lapuerta, J. Malenovský and T. von Danwitz, Judges,
Advocate General: P. Mengozzi,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 28 June 2007,
after considering the observations submitted on behalf of:
Mrs Hollmann, by M.A. Torres, advogado,
the Portuguese Government, by L.I. Fernandes, Â.S. Neves and J. M. Leitão, acting as Agents,
the Commission of the European Communities, by R. Lyal and M. Afonso, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Legal context
'1. Capital gains are any gains realised, other than those regarded as business or professional income, capital income or income from immovable property, arising from:
(a) the transfer for valuable consideration of rights in rem in immovable property or from the use of any private assets for the purposes of the business or professional activities pursued on an individual basis by the owner of such assets;
...
4. A gain that is subject to IRS [personal income tax] shall be made up of:
(a) the difference between the realisation value and the acquisition value, less any part that may be treated as capital income, in the cases referred to at (a), (b) and (c) in paragraph 1;
...'
'1. The amount of income classified as capital gains is represented by the balance of the difference between capital gains and capital losses occurring in the same year, determined in accordance with the following articles.
2. The balance referred to in the foregoing subparagraph, in respect of disposals made by residents as provided for in Article 10(1)(a), (c) and (d), whether positive or negative, shall be taken into account as to only 50% of its amount.
...'
The dispute in the main proceedings and the question referred
'Does Article 43(2) of the ... CIRS ..., which limits the incidence of the tax to 50% of capital gains realised by persons residing in Portugal, infringe Articles 12 [EC], 18 [EC], 39 [EC], 43 [EC] and 56 [EC] ... by excluding from that limitation capital gains realised by a person residing in another Member State of the European Union?'
The question referred
Admissibility
The principles and freedoms applicable
The free movement of capital
Costs
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 56 EC must be interpreted as precluding national legislation, such as that in dispute in the main proceedings, which subjects capital gains resulting from the transfer of immovable property situated in a Member State, in this case Portugal, where that transfer is made by a resident of another Member State, to a tax burden greater than that which would be applicable for the same type of transaction to capital gains realised by a resident of the State in which that immovable property is situated.
[Signatures]
* Language of the case: Portuguese.