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Tax & Legal

Tax & Legal

VAT refund: One-month period for submission of additional information not a deadline


In a French case the ECJ held that failure by a taxable person to provide additional information on the VAT refund application and to answer further questions within the one-month period provided for under Council Directive 2008/9 does not automatically lead to the forfeiture of his entitlement to a VAT refund. Continue reading

ECJ: Passive income attribution from controlled companies resident in third countries


The European Court of Justice has held that the German provision for the taxation of  controlled company income from invested capital from outside the EU might fall under the “grandfather” clause of Art 64 TFEU, provided the German legislation has remained substantially unchanged since that date. It is now for the Supreme Tax Court to decide finally whether this is the case. Continue reading

ECJ provides guidance on beneficial ownership and abuse of rights


On 26 February 2019, the ECJ issued its judgements in the joined cases T Denmark and Y Denmark -v- the Danish Ministry of Taxation (C-116/16 and C-117/16) and N Luxembourg 1, X Denamrk A/S, C Danmark I and Z Denmark ApS -v- the Danish Ministry of Taxation ( C115/16. C-118/16, C-119/16 and C-299/16). These cases related to the question of whether dividend and interest payments were exempt from withholding tax, when the payments were made from a Danish company to a EU-resident company, and then(fully or partially) passed on by the EU-resident to the ultimate parent resident in a third country. Continue reading

Final loss utilization by parent company in case of merger and liquidation of a second-tier subsidiary?


The European Court of Justice will have to decide once again on the justification of the non-deductibility of ‘final losses’ in the foreseeable future. In two Swedish cases the Advocate General has formulated her opinion and is not convinced of a “finality” or cross-border loss utilisation due to the particularities of the cases. Continue reading

European Court of Justice: Information to be provided by applicants for authorised economic status under the Union Customs Code


In its judgement of 16 January 2019, the European Court of Justice (ECJ) held that the information required by the customs authorities from legal persons applying for authorised economic status (AEO) under the Union Customs Code – in particular the tax identification numbers and the name of the responsible tax offices of certain employees of the applicant – was lawful within the ambit of Directive 95/46/EC and Regulation (EU) 2016/679 governing the protection of individuals with regard to the processing of personal data and on the free movement of such data. The gathering of information was limited, however, to information on individuals who were in charge of the applicant, or who exercised control over its management and to those who were in charge of the applicant’s customs matters. Continue reading

European Court of Justice: RETT exemption on conversions not illegal State Aid


Back in June 2017 we informed you of the Supreme Tax Court’s referral to the European Court of Justice of the question as to whether the RETT exemption on conversions(Section 6a Real Estate Transfer Tax Act) constitutes illicit State Aid. On 19 December 2018, the European Court of Justice held in A-Brauerei (C-374/17) that the RETT exemption granted in the case before it of an upstream merger did not infringe the State Aid rules. Continue reading

Current version of German anti-treaty shopping legislation is also incompatible with EU law


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. Again, the ECJ found that the provision both contravened the Parent/Subsidiary Directive and constituted a restriction of the freedom of establishment. Continue reading

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. It is up to the referring court, however, to decide whether the legislation did in fact give the taxpayer the chance to prove that the terms were agreed on for commercial reasons resulting from its status as a shareholder of the non-resident company.
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