Seat theory versus incorporation theory: An analysis of the ECJs jurisdiction and its implications

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Studi Tributari Europei, 2009

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For an important scholarly sector [92] , there are well-grounded reasons to interpret that art.

Exit Taxes and the European Community Law in the light of Spanish Law

Bigger problems would arise in the cases of transfer abroad of the registered seat, when art. Nevertheless, referred jurisprudence interprets that the field of application of these precepts should be limited to those unusual or exceptional cases where the seat transfer abroad does not imply a change in the Law regulating the company change of registered seat takes place, but the company continues to be under Spanish law [94].


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According to art. In these cases, art. A combined reading of art. Nevertheless, a mere reading of these two measures may lead to incorrect conclusions, as these should be connected to what we have analysed above. At the same time, it is necessary to clarify when an entity can be considered as residing in Spain in terms of its personal liability to corporate tax contribution basically, all legal persons, except for common law companies with legal personality, and other entities that, although without legal personality, have a corporate tax liability, like, for instance, mutual funds or pension funds.

An issue made reference to by art. To these effects, it will be supposed that a entity has its actual centre of administration in Spanish territory when having there the control and management of the whole of its activities. A combined interpretation of art.

Not all changes in the corporate life have as consequence the tax liability and the application of art. The application of art. If the most traditional opinion among Trade Law scholars is followed, in the sense that such an option has as consequence the dissolution and liquidation of the company, art. However, if the approach we consider more correct were to be adopted, namely that the transfer of registered seat does not necessarily determine the dissolution and liquidation of the company and that it is perfectly possible in spite of the fact that no international agreement exists on this sense, art.

In this case, the rule of art. In such a case, it is also necessary to keep in mind the rules of art.

It is true that linking the interpretation of the above to art. It could be thought that art.


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However, probably art. Consequently, in our opinion, art. As we already commented above in the part dedicated to natural people, art. It is necessary to imagine a third hypothesis raising problems from the perspective of Community Law, regarding companies constituted abroad or in a more general way, entities but having in Spanish territory their actual centre of administration [] or even when the transfer of the actual centre of administration is carried out together with the change of registered seat to Spanish territory [].

Dual Resident Corporations Following ECJ's Centros Decision - - Germany

Also in this case art. Nevertheless, it is necessary to keep in mind that the differences in accounting for good can have their origin in the application of different accounting rules e. Regarding individuals, Communication of the Commission, section 2. After ECJS Kerckhaert [] , in our opinion, the elimination of the double taxation must be guaranteed through coordination, without having to state that it intrinsically constitutes a limitation of the freedom of establishment.

In short, they are two situations in which an infringement of the Community freedom of establishment can take place:. It must be observed that in these cases Spanish Law will tax both capital gains generated before to the transfer of the actual centre of administration to Spain and the capital gains related to the time of residence in Spanish territory, with the result of making possible a double taxation as a consequence of the overlapping of Spanish taxation and the taxation of the State where the company is incorporated, when the actual centre of administration is transferred to Spain.

However, such a double taxation can be probably solved through Community legislative process or, if Spanish legislator wants it, through a change of TRLIS regarding these cases. Likewise, we should consider that ECJ, in its sentence N [] , articulated a Community rule referred to the treatment of capital loss or loss of value possibly incurred by the company between the time of transfer of residence and the actual date of transfer or transmission of such assets []. However, it is paradoxical that Spanish capital gains taxation is not guaranteed with respect to possible transfers of the actual centre of administration to other States that have signed agreements on double taxation with Spain containing a clause similar to art.

Exit taxes and the transfer abroad of goods and rights from the parent company in Spain. Regardless of whether the taxation we are referring to responds to the internationally accepted principle of separate company, established by art. Indeed, according to art. In these cases, the inclusion of the difference between the market value of transferred goods or right and its acquisition for the parent company is, in our opinion justified, although, as the Commission indicates, the taxation should probably be differed to the time of transfer to a third party [].

Again, in our opinion, these are problems to be solved only by legislative procedures, although the mutual recognition of values, as the Commission proposes, could be an adequate way. In taxation terms, the loss of fiscal residence of SE or ECS in Spain or the transfer of assets to their PEs abroad will determine the application either of art. In this sense, it can be said that the special regulation of the transfer of address of SE or ECS in the art. The same thing will happen when the transfer of assets from SE or ECS to their PEs located in other Member States generates a fictitious income that should be included in corporate tax returns in the tax year in which the transfer was carried out.

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