CJEU rules on no transfer tax on share-for-share contributions in group reorganisations

In a landmark ruling, the Court of Justice of the European Union (CJEU) promises to reshape the taxation of share transactions involving property-rich companies across Europe. 

On 4 June 2026, the CJEU delivered a ruling in the Nova Iberomoldes case (C-837/24), which held that EU law prohibits member states from levying transfer tax on share-for-share contributions used to form a holding company even when the contributed shares are in companies that own real estate.

Background

The case concerned the share capital of the Portuguese holding company Nova Iberomoldes, which was paid not in cash but through the contribution of shares in other companies, some of which owned real estate. The Portuguese tax authority argued that this contribution should be subject to a transfer tax (imposto municipal sobre as transmissões onerosas de imóveis or IMT), treating the share transfer as being equivalent to a transfer of the underlying property.

Ruling

The CJEU held that this transaction constituted a “restructuring operation” under the EU Capital Duties Directive (2008/7/EC). Where a company acquires a majority shareholding in another company and the consideration consists (in whole or in part) of shares rather than cash, the Directive treats this as a restructuring operation that must be exempt from indirect taxes. The Directive is designed to eliminate tax obstacles to raising capital and the reorganisation of companies within the EU.

The Court rejected Portugal’s attempt to rely on the exceptions in the Directive. First, the exception for “duties on the transfer of securities” applies only to securities transfers that are independent transactions, not to transfers that form part of a broader restructuring. Second, the exception for “transfer duties on immovable property” requires a legal transfer of property. Here, no such transfer occurred: the real estate remained with its original owner. The Court added that even from an economic perspective, there was no transfer of actual ownership in this intra-group reorganisation. The fact that the tax was calculated based on the value of the underlying real estate did not change this analysis.

The Court also rejected Portugal’s argument that the tax was justified as an anti-avoidance measure. While member states may combat genuine fraud or abuse, they cannot rely on blanket presumptions that automatically treat all share transactions involving property-owning companies as abusive. A provision that applies “without exception” to any transaction involving shares in property-owning companies, regardless of concrete evidence of fraud, goes beyond what is necessary and violates the principle of proportionality.

Implications for the Netherlands

Dutch law currently treats certain share acquisitions in “real estate entities” (vastgoedlichamen) as if the underlying property had been transferred, triggering real estate transfer tax (overdrachtsbelasting). This approach is similar to the Portuguese rules found incompatible with EU law in the Nova Iberomoldes case.

For ordinary commercial acquisitions of shares in property-rich companies where the consideration consists of cash, the Dutch rules are likely to remain unaffected. Where a share acquisition is structured as a share-for-share exchange (with shares constituting all or part of the consideration), the ruling indicates that the Dutch real estate transfer tax should not apply, provided that the acquisition qualifies as a bona fide contribution of capital or a corporate restructuring (including any transaction incidental to it). This holds true even where the acquired company owns real estate and the Dutch rules would otherwise “look through” to that underlying property.

Moreover, the conditions attached to the merger and internal reorganisation exemptions under the real estate transfer tax regime may be incompatible with the EU Capital Duties Directive, to the extent that they result in the taxation of a capital contribution or restructuring involving the transfer of shares in a real estate entity. In particular, broad conditions and clawback provisions would, in such circumstances, be difficult to sustain since they extend to transactions not involving fraud or abuse.

The implications of Nova Iberomoldes may extend beyond the existing Dutch exemptions for mergers, demergers, and internal reorganisations. Taxpayers who have recently discharged real estate transfer tax in connection with share transactions that arguably fall within the scope of the Directive’s prohibition (and where the assessment has not yet become final and conclusive) should consider whether lodging an objection or submitting a refund request is appropriate.

What to expect

The Dutch Ministry of Finance and Tax Authorities have not yet responded to this ruling, but debate on the scope of the judgment is expected, particularly whether it applies only to “pure” share-for-share exchanges or to transactions involving partial cash consideration or other assets. CMS will monitor developments closely and provide updates as the Dutch position becomes clearer.

Key takeaways

• Share-for-share contributions in genuine group reorganisations must be exempt from indirect taxes under EU law, even if domestic rules “look through” to the value of underlying real estate.
• Dutch real estate transfer tax rules on share acquisitions in real estate entities may need to be revisited after this judgment.
• Anti-avoidance measures must target concrete indicators of abuse. General presumptions that apply “without exception” to all share transactions involving property-owning companies are disproportionate and incompatible with EU law.
• Taxpayers considering reorganisations involving share-for-share contributions should assess whether the Directive’s exemption applies and document the commercial rationale for the transaction.

For more information on how this ruling may affect your business, contact your usual CMS adviser or any of the authors of this alert.

Case C-837/24, Nova Iberomoldes – SGPS, S.A. v Autoridade Tributária e Aduaneira, ECLI:EU:C:2026:445.