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Common system of taxation: mergers, divisions, transfers of assets, exchanges of shares and transfer of the registered office of an SE or SCE

This Directive introduces a common system of taxation for cross-border restructuring operations.

ACT

Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States.

SUMMARY

This Directive applies to:

Rules applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares

A merger, division or partial division does not give rise to any taxation of capital gains -calculated by reference to the difference between the real values of the assets and liabilities transferred and their values for tax purposes - at the time of the operation in question but only when such gains are actually realized.

Member States are required to take the necessary measures to ensure that provisions or reserves partly or wholly exempt from tax may be carried over by the permanent establishments of the receiving company which are situated in the Member State of the transferring company.

The allotment of securities representing the capital of the receiving or acquiring company to a shareholder of the transferring or acquired company must not give rise to any taxation of the income, profits or capital gains of that shareholder.

Special case of the transfer of a stable establishment

Where the assets transferred in a merger, a division or a transfer of assets include a permanent establishment of the transferring company which is situated in a Member State other than that of the transferring company, the Member State of the transferring company must renounce any right to tax that permanent establishment.

Special case of transparent entities

Where a Member State considers a non-resident transferring or acquired company to be fiscally transparent, it is not required to apply the provisions of this Directive when taxing a direct or indirect shareholder of that company in respect of the income, profits or capital gains of that company.

Rules applicable to the transfer of the registered office of an SE or SCE

Where an SE or an SCE transfers its registered office from one Member State to another or becomes resident in another Member State, that transfer shall not give rise to any taxation of the income, profits or capital gains of the shareholders. However, Member States may tax the gain arising out of the subsequent transfer of the securities representing the capital of the SE or of the SCE that transfers its registered office.

In the same case, Member States shall take the necessary measures to ensure that, where provisions or reserves properly constituted by the SE or the SCE before the transfer of the registered office are partly or wholly exempt from tax and are not derived from permanent establishments abroad, such provisions or reserves may be carried over, with the same tax exemption, by a permanent establishment of the SE or the SCE which is situated within the territory of the Member State from which the registered office was transferred.

This Directive repeals Directive 90/434/EC.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal

Directive 2009/133/EC

15.12.2099

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OJ L 310, 25.11.2009

Last updated: 13.04.2011
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