Brussels Securities (Opinion) French Text [2019] EUECJ C-389/18_O (05 September 2019)

Brussels Securities (Opinion) French Text [2019] EUECJ C-389/18_O (05 September 2019)

A national regime that requires dividends received by a parent company from subsidiaries in other Member States to be first included in the taxable base and then deducted, with such deduction to be made before other tax advantages whose carry-forward is time-limited (such as the DCR), is incompatible with Article...

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Citation
[2019] EUECJ C-389/18_O
Parties
Applicant: Brussels Securities SA; Respondent: État belge
Jurisdiction
European Union
Judgment Date
05 September 2019
Procedural Posture
Preliminary Reference (demande De Décision Préjudicielle) / Opinion of Advocate General
Outcome
Article 4(1) of Directive 90/435/EEC precludes a national regime requiring dividends to be deducted before other time-limited tax advantages, where this results in the loss of such advantages and indirect taxation of dividends.
Legal Topics
Parent Subsidiary Directive, Double Taxation, Corporate Taxation, Tax Deduction Order, Fiscal Neutrality
European Union Law Tax Law Parent Subsidiary Directive Double Taxation Corporate Taxation Tax Deduction Order Fiscal Neutrality

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Parties

Brussels Securities SA

Applicant

État belge

Respondent

Procedural Posture

Preliminary Reference (demande De Décision Préjudicielle) / Opinion of Advocate General

  1. 1 Whether Article 4(1) of Directive 90/435/EEC precludes a national regime requiring dividends received by a parent company from subsidiaries in other Member States to be first included in the taxable base and then deducted, with such deduction to be made before other tax advantages whose carry-forward is time-limited.

Ratio Decidendi

A national regime that requires dividends received by a parent company from subsidiaries in other Member States to be first included in the taxable base and then deducted, with such deduction to be made before other tax advantages whose carry-forward is time-limited (such as the DCR), is incompatible with Article 4(1) of Directive 90/435/EEC if it results in the loss of those other advantages and thus an indirect taxation of the dividends, contrary to the Directive's objective of fiscal neutrality and avoidance of double taxation.

Court Disposition

Article 4(1) of Directive 90/435/EEC precludes a national regime requiring dividends to be deducted before other time-limited tax advantages, where this results in the loss of such advantages and indirect taxation of dividends.