C-15/89

3. However, on the proposal of its Advocate General, that supreme court has 2. The facts may be summarized as follows. requested the Court of Justice for an inter­ From 1972 the holding company Deltavisie pretation of Article 4(2)(b) of the Directive BV ('Deltavisie') held all the shares in the in order to ascertain in substance whether company Deltakabel BV ('Deltakabel'). the remission of debt granted by a member Until 1980, Deltakabeľs losses were taken attracts capital duty in so far as that over by Deltavisie through a current provision requires that the remission should account operated between the two be capable of increasing the value of the companies. However, Deltavisie was due to company's shares. sell its shares in Deltakabel on 1 January 1981 to an associated company, Belegging­ smaatschappij Mastbos BV. For the purposes of that transaction it waived a portion, amounting to HFL 17 276 636, of its claim against Deltakabel. The asset value of Deltakabel was assessed at HFL 1, the price at which the shares were sold to 4. Article 4(2)(b) of the Directive provides Beleggingsmaatschappij Mastbos BV. By a that the Member States may subject to notice of 4 April 1984 the Netherlands tax capital duty 'an increase in the assets of a authorities charged capital duty on that capital company through the provision of services by a member which do not entail an language:: French * Original language French.. increase in the company's capital, but which OJ.. English Special Edition 1969 (II 1 — OJ ), p. 412 II), 412.. do result in a variation in the rights in the

6. In his Opinion on the case the Advocate General at the Hoge Raad indicated, however, that views were divided amongst academic writers in the Netherlands. For 9. In its recent judgment in the Siegen case, example, Mr van Kalmthout considers that the Court in fact stated that: a write-off of funds 'storting à fonds perdus' need not always be subject to capital duty, in particular where it is intended to clear off a liability if no increase in the value of the company's shares results. 3Mr Aardema, on ' ... when a company has incurred losses the other hand, considers that the transfor­ and one of its shareholders agrees to absorb mation of a liability into a lesser liability is a those losses, that shareholder makes a form of increase in value. 4 Finally, contribution which increases the assets of according to Mr Tijnagel, capital duty is the company. He restores the assets to the payable only in so far as, owing to the level which they had reached before the remission of debt, the value of the losses were sustained'. 6 subsidiary's shares increase so as to exceed the nominal share capital. 5

2 — Judgment in Case 270/81 Felicitas Rickmers-Linie KG 6 Co. v Finanzamt für Verkehrsteuern [1982] ECR 2771, paragraph 16 at p . 2784; see also the judgment in Case 36/86 Ministeriet for Skatter og Afgifier v Dansk In my view, the same reasoning applies Sparinvest [1988] ECR 409, paragraphs 13 and 14. where only a part of the liability is cleared 3 — Fiscale aspecten van ondernemingen. Opstellen aangeboden off. aan Prof. D. A. M. Meeles' (1985), p. 83, cited by the Advocate General at the Hoge Raad der Nederlanden. 4 — WFR 1986/5734, p. 830. 6 — Judgment in Case C-38/88 Weldrich Siegen Werkzeugma- 5 — WFR 1988/5735, p. 875. schinen GmbH v Finanzamt Hagen [WW] ECR I-1447.