Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 4 July 2018 — Galeria Parque Nascente-Exploração de Espaços Comerciais S.A. v Autoridade Tributária e Aduaneira
(Case C-438/18)
Language of the case: Portuguese
Referring court
Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)
Parties to the main proceedings
Applicant: Galeria Parque Nascente-Exploração de Espaços Comerciais S.A.
Defendant: Autoridade Tributária e Aduaneira
Questions referred
If Article 23(1)(c) of the Corporation Tax Code, in the version in force in 2013, and Article 23(1) and (2)(c) of that code, in the version in force in 2014, are interpreted as meaning that, after the ‘reverse merger’ in question, the interest on the loans taken out with third parties (which but for the merger would be deductible by the company now being acquired), in order to purchase the shares of the subsidiary which is now the acquiring company, and transferred as a result of the merger, ceases to be deductible for tax purposes from the profits of the acquiring company, will those provisions be compatible with Community law, in particular having regard to the fact that that non-deductibility of the interest may constitute an impediment or restriction to the merger operations encompassed by Council Directive 2009/133/EC, 1 infringing the principles and objectives of that directive, as well as Article 4 thereof?
If the first question is answered to the effect that that non-deduction of interest for tax purposes is compatible with the directive, will that answer remain unchanged by the fact that such a correction was not made on the basis of the anti-abuse provision of the directive (Article 15) or the national law reproducing it (Article 73(10) of the Corporation Tax Code), but another provision of national law (Article 23 of the Corporation Tax Code)?
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1 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 (OJ 2009 L 310, p. 34).