Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 3 December 2018 — Totalmédia — Marketing Directo e Publicidade S.A. v Autoridade Tributária e Aduaneira

(Case C-751/18)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Totalmédia — Marketing Directo e Publicidade S.A.

Defendant: Autoridade Tributária e Aduaneira

Questions referred

If after the ‘reverse merger’ in question, the interest and other financial charges on the loans taken out with third parties or associates (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, are interpreted as ceasing to be deductible for tax purposes from the profits of the acquiring company, will Article 23(1)(c) of the Corporation Tax Code, in the version in force in 2013, be compatible with EU law, in particular in the sense that that non-deductibility of the financial charges 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 financial charges 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 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).