Stamp Duty - European Union

European Union

Stamp duty is approached by the European Commission regarding raising of capital (capital duty). Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital stated that transactions subject to capital duty shall only be taxable in the Member State in whose territory the effective centre of management of a capital company is situated at the time when such transactions take place. When the effective centre of management of a capital company is situated in a third country and its registered office is situated in a Member State, transactions subject to capital duty shall be taxable in the Member State where the registered office is situated. When the registered office and the effective centre of management of a capital company are situated in a third country, the supplying of fixed or working capital to a branch situated in a Member State may be taxed in the Member State in whose territory the branch is situated.

The spirit of the Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital is that capital duty interferes with the free movement of capital. The Proposal for a Council Directive of 28 September 2011 on a common system of financial transaction tax will amend this Directive 2008/7/EC, but it is not published in the Official Journal. This Directive 2008/7/EC acknowledges that the best solution would be to abolish the duty, but allows those Member States that charged the duty as at 1 January 2006 may continue to do so under strict conditions. With this stamp duty Directive, Member States may not levy indirect tax on the raising of capital to capital companies in:

• contributions of capital;
• loans or services provided as part of contributions of capital;
• registration or other formalities required before commencing business because of the company's legal form;
• alteration of the instruments constituting the company, particularly when involving the conversion into a different type of company, the transfer of centre of effective management or registered office from one Member State to another, a change in the company's objects or the extension of its period of existence;
• restructuring operations.

Indirect taxes are also entirely prohibited on the issue of certain securities and debentures.