Tax & Legal

Categories: All (13 found)

1. 05.06.2022

   Free movement of capital inapplicable in case German company ...

   In a most recent decision, the Regional Tax Court of Düsseldorf dismissed the claim of a Japanese corporation for a refund of withholding tax on the grounds that the case was within the scope of the EU principles for freedom of establishment which the plaintiff, being a resident of a third country, could not invoke.

   Categories: Tax Court

   Keywords: free movement of capital, freedom of est ...
2. 19.06.2019

   European Court of Justice: Final Losses

   The European Court of Justice held in its decision Memira Holding AB issued on 19 June 2019 that when assessing whether the losses of a non-resident subsidiary are final within the meaning of its judgment in Marks & Spencer on 13 December 2005 (C‑446/03), the fact that, in the event of a merger, the subsidiary’s Member State of establishment does not does not allow the losses of one company to be transferred to another company liable for corporation tax, is not decisive, unless the parent company can demonstrate that it is impossible for it to deduct those losses through ensuring that - in particular by means of a sale- the losses are fiscally taken into account by a third party for future tax periods.

   Categories: European Court of Justice

   Keywords: freedom of establishment, final losses, ...
3. 01.02.2019

   Free movement of capital in cases of shareholdings of at lea ...

   In its judgement of 24 July 2018, published on 30 January 2019, the Supreme Tax Court held that with regard to national provisions with a requirement of a minimum shareholding of at least 10%, the principle of the free movement of capital is not blocked by the principle of freedom of establishment. Whilst the judgement specifically related to a legal provision, which is no longer applicable, it represents a departure by the Supreme Tax Court from its previous view on this issue.

   Categories: Supreme Tax Court cases

   Keywords: minimum holding, free movement of capita ...
4. 26.06.2018

   Current version of German anti-treaty shopping legislation i ...

   On 25 June 2018, the European Court of Justice published its decision of 14 June 2018 concerning the current version of the German anti-treaty /anti-directive shopping legislation.

   Categories: European Court of Justice

   Keywords: freedom of establishment, Parent/Subsidi ...
5. 06.06.2018

   German CFC rules may be compatible with EU law

   The European Court of Justice held that the German CFC regulations – as such – do not generally pose a restriction on the freedom of establishment.

   Categories: European Court of Justice

   Keywords: CFC provisions, freedom of establishment ...
6. 28.05.2018

   ECJ decision German CFC regulations to be published on 31 Ma ...

   The publication of the decision of the European Court for Justice (ECJ) in the Hornbach-Baumarkt case is scheduled for 31 May 2018.

   Categories: European Court of Justice

   Keywords: freedom of establishment, CFC, allocatio ...
7. 27.02.2018

   Compatibility of Dutch group taxation regime with EU fundame ...

   The European Court of Justice issued a joint judgment in two cases regarding the Dutch group taxation regime under which a parent company is not allowed to deduct interest in respect of a loan taken from a Swedish related company in order to finance its capital contribution to an Italian subsidiary. This is held to be in conflict with the EU freedom of establishment. On the other hand, the refusal to deduct currency losses resulting from fluctuations in the exchange rate is viewed by the court as being not in violation of EU-law.

   Categories: European Court of Justice

   Keywords: freedom of establishment, dutch group ta ...
8. 22.12.2017

   ECJ – German Anti-Treaty-Shopping Rule infringes EU law

   On 20 December 2017 the European Court of Justice (ECJ) issued its decision on two cases referred to it by the Cologne Tax Court on the compatibility of the anti-abuse rule in Section 50d Income Tax Act (ITA) with EU law. According to Section 50d (3) ITA certain intermediary foreign companies are not entitled to a (full or partial) refund of German withholding tax; without a preceding oral hearing the ECJ took the view that the section was incompatible with both the Parent-Subsidiary Directive and the freedom of establishment. - See update further below!

   Categories: European Court of Justice

   Keywords: freedom of establishment, anti-treaty sh ...
9. 27.02.2014

   Exclusion of domestic sub-subsidiaries from tax group confli ...

   An ECJ advocate general has suggested the court hold that the Dutch provisions on tax groups are in conflict with the freedom of establishment insofar as they do not allow domestic sub-subsidiaries of a foreign subsidiary or domestic subsidiaries of a foreign parent to join or form a Dutch tax group.

   Categories: From Europe

   Keywords: freedom of establishment, tax group, sub ...
10. 26.04.2013

    No immediate tax on move to another member state

    The ECJ has held that immediate taxation of the difference between book and market value of assets moved to another member state goes beyond what is necessary to preserve the legitimate interests of the first state in preserving its tax base if the same move within the country would be tax-free.

    Categories: From Europe

    Keywords: freedom of establishment, asset transfer ...
11. 15.11.2012

    5% dividend expense disallowance restricts freedom of establ ...

    The Supreme Tax Court has held that the 5% expense disallowance on tax-free dividends was, up to 2002, a restriction on the freedom of establishment rather than of capital movement and could thus be upheld in respect of a 33% share in a US company.

    Categories: Supreme Tax Court cases

    Keywords: freedom of establishment, expense disall ...
12. 14.11.2012

    Foreign tax credit precluded if domestic income exempt despi ...

    The ECJ has held that freedoms of establishment and of capital movement preclude national legislation relieving foreign tax by credit as opposed to the exemption of domestic source income where the actual corporation tax paid by domestic companies is generally less than the nominal rate. It has also accepted the freedom of capital movement as relevant, unless the national legislation was aimed at controlling interests.

    Categories: From Europe

    Keywords: foreign tax credit, freedom of establish ...
13. 24.07.2012

    Freedom of establishment can override free movement of capit ...

    The ECJ has held that the freedom of establishment cannot always be extended to third states through the freedom of capital movement.

    Categories: From Europe

    Keywords: free movement of capital, freedom of est ...