Brussels, 27 November 2008
Direct taxation: The European Commission requests Portugal and Spain to change restrictive exit tax provisions for companies
The European Commission has formally requested Portugal and Spain to change their tax provisions which impose immediate exit taxes when companies cease to be tax resident in these countries or transfer their assets to another Member State. The Commission considers these provisions to be incompatible with the freedom of establishment (art. 43 EC) provided for in Article 43 of the Treaty and Article 31 of the EEA Agreement. The requests take the form of a reasoned opinion (second step of the infringement procedure provided for in Article 226 of the EC Treaty). If there is no satisfactory reaction to the reasoned opinions within two months, the Commission may decide to refer the cases to the Court of Justice of the European Communities.
Under Spanish law, when a Spanish company transfers its residence to another Member State or when a permanent establishment ceases its activities in Spain or transfers its Spanish located assets to another Member State, unrealised capital gains must be included in the taxable base of that financial year, whereas unrealised capital gains from purely domestic transactions are not included in the taxable base.
Under Portuguese law, in case of the transfer of seat and place of effective management of a Portuguese company to another Member State or in case a permanent establishment ceases its activities in Portugal or transfers its Portuguese located assets to another Member State
The Commission considers that such immediate taxation penalises those companies that wish to leave Portugal and Spain or transfer assets abroad, by introducing less favourable treatment for them, compare to for those companies which remain in the country or transfer assets domestically. The rules in question are therefore likely to dissuade companies from exercising their right of freedom of establishment and, as a result, constitute a restriction of Article 43 EC and the corresponding provision of the EEA Agreement.
The Commission's opinion is based on the EC Treaty as interpreted by the Court of Justice of the European Communities in its judgments of 11 March 2004, in Case C-9/02, De Lasteyrie du Saillant, and 7 September 2006 in Case-470/04, N, as well as on the Commission's Communication on exit taxation (COM(2006)825 of 19 December 2006).
The Commission's case reference number is 2007/2365 (Portugal) and 2007/2382 (Spain)
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