17Upon becoming aware, in particular, of the judgment of 21 November 2002 in Case C-436/00 X and Y [2002] ECR I-10829, on 8 January 2004 3D I asked the Italian tax authorities to refund the substitution tax which it had paid. It argued that Article 2(2) of Legislative Decree No 544/1992 was incompatible with Directive 90/434 in that it made the neutrality of the transfer subject to conditions not contemplated by that directive. In particular, the existence of the condition pursuant to which the difference in value had to be frozen in a non-distributable reserve fund had in practice, according to 3D I, led the undertakings concerned to opt for the substitution tax, since the third option envisaged by the national system, namely payment of standard tax at a rate of 33% on the difference in value, was even less advantageous than the other two options. 3D I claimed that it had mistakenly believed that the conditions set out in Article 2(2) of Legislative Decree No 544/1992 were lawful and that, because of that mistake, it had opted for the substitution tax rather than for the regime of fiscal neutrality.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.