CJEU Ruling Could Impact Dutch Real Estate Transfer Tax in Restructuring Transactions
CJEU Ruling Could Impact Dutch Real Estate Transfer Tax in Restructuring Transactions
On 4 June 2026, the Court of Justice of the European Union (CJEU) delivered a favourable ruling in a Portuguese restructuring case, concluding that Portugal’s real estate transfer tax violates EU law when applied to certain restructuring transactions. The court held that domestic rules treating the acquisition of shares in a real property-owning company as equivalent to a direct transfer of ownership of real property are incompatible with EU law (specifically, the EU Capital Duty Directive ) and cannot be justified.
The Capital Duty Directive prohibits EU member states from subjecting capital companies to indirect taxation with respect to “contributions of capital” and “restructuring operations” within the meaning of the directive.
Although the CJEU ruling directly concerns Portugal’s real estate transfer tax, it may have broader implications for EU member states that impose a real estate transfer tax on the acquisition of shares in a real estate-owning company. The decision could limit their ability to tax such transactions. Below we consider the potential relevance for the Dutch real estate transfer tax.
Dutch real estate transfer tax applies to the acquisition of real property and the acquisition of a “substantial interest”—typically one-third or more—in a real estate entity. For tax purposes, shares in a real estate entity are treated as real property. A legal entity qualifies as a real estate entity when its share capital consists to a significant extent of Dutch real estate held predominantly for exploitation.
In many cases, no exemption is available for such a share exchange. Where an exemption does exist, additional conditions—often aimed at preventing abuse—apply. This is also true for acquisitions of shares in an independent legal entity within a corporate group.
While the outcome of the case is clear, the precise scope and practical implications of the CJEU decision for other restructuring transactions remain to be seen.
The Capital Duty Directive prohibits EU member states from subjecting capital companies to indirect taxation with respect to “contributions of capital” and “restructuring operations” within the meaning of the directive.
Although the CJEU ruling directly concerns Portugal’s real estate transfer tax, it may have broader implications for EU member states that impose a real estate transfer tax on the acquisition of shares in a real estate-owning company. The decision could limit their ability to tax such transactions. Below we consider the potential relevance for the Dutch real estate transfer tax.
Real estate entities and real estate transfer tax
Under Dutch law, a restructuring involving the acquisition of shares in a “real estate entity” (onroerendezaakrechtspersoon or ozr in Dutch) generally triggers real estate transfer tax unless an exemption applies. The exemptions often contain complex anti-abuse conditions, and in practice, these conditions can inadvertently affect transactions where no abuse is present, creating unnecessary friction for legitimate restructurings.Dutch real estate transfer tax applies to the acquisition of real property and the acquisition of a “substantial interest”—typically one-third or more—in a real estate entity. For tax purposes, shares in a real estate entity are treated as real property. A legal entity qualifies as a real estate entity when its share capital consists to a significant extent of Dutch real estate held predominantly for exploitation.
Restructuring and exemptions
Restructurings may involve the acquisition of shares in an independent real estate entity. Consider, for example, a share exchange in which the acquiring legal entity issues its own shares in return for obtaining a majority of voting rights in another (independent) entity. As a rule, the acquiring entity becomes liable for real estate transfer tax.In many cases, no exemption is available for such a share exchange. Where an exemption does exist, additional conditions—often aimed at preventing abuse—apply. This is also true for acquisitions of shares in an independent legal entity within a corporate group.
Potential impact on Dutch real estate practice
The CJEU held that certain restructurings do not constitute an acquisition subject to real estate transfer tax. In those situations, there is no taxable event and the real estate transfer tax may not be imposed. This reasoning may have consequences for Dutch practice. The judgment raises the question of whether Dutch real estate transfer tax imposed on restructurings involving real estate entities—particularly where tax is triggered solely because shares are deemed to be real property—is compatible with EU law.While the outcome of the case is clear, the precise scope and practical implications of the CJEU decision for other restructuring transactions remain to be seen.
