Foggia - Sociedade Gestora de Participacoes Sociais SA v Secretario de Estado dos Assuntos Fiscais: C-126/10 [2011] All ER (D) 134 (Nov)
Article 11(1)(a) of Council Directive (EEC) 90/434 (on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different member states) had to be interpreted as meaning that, in the case of a merger operation between two companies of the same group, the fact that, on the date of the merger operation, the acquired company did not carry out any activity, did not have any financial holdings and transfer to the acquiring company only substantial tax losses of undetermined origin, even though that operation had a positive effect in terms of cost structure savings for that group, might constitute a presumption that the operation had not been carried out for “valid commercial reasons” within the meaning of Art 11(1)(a) of the directive.
It was incumbent on the national court to verify, in the light of all the circumstances of the dispute on which it was required to rule, whether the constituent elements of the presumption of tax
