Advocate General Kokott has given an opinion in the case Argenta Spaarbank.
Kokott proposes that the request for a preliminary ruling from the Rechtbank van eerste aanleg Antwerpen be answered as follows:
1. Directive 90/435/EEC does not preclude a legislative provision of a Member State such as Article 198(10) of the Belgian Income Tax Code of 1992, according to which interest up to the level of an amount corresponding to the amount of the exempted dividends received by a company on shares that it has not held for an uninterrupted period of at least one year at the time of their transfer is not to be considered a business expense.
In the alternative, should the Court not regard Article 198(10) of the Income Tax Code as being covered by the second indent of Article 3(2) of the Directive:
2. Article 4(2) of Directive 90/435/EEC precludes a legislative provision of a Member State such as Article 198(10) of the Belgian Income Tax Code of 1992, according to which interest costs up to the level of exempted dividend income from holdings generally cannot be claimed as decreasing profits, without account being taken of whether the interest is causally connected to those holdings. Nor does such a provision constitute a provision of national law for the prevention of tax evasion and abuses whose application is not precluded under Article 1(2) of Directive 90/435/EEC.