Taken at face value, Sofina ’s [1.] impact may extend well beyond withholding taxes, specifically, and dividend taxation, more generally, by attaching a “no-loss” condition to all source state taxing rights. It may arguably even bar the permanent establishment (PE) state from taxing profits attributable to that PE if the foreign head office is in a loss position.
Moreover, applying Sofina to everyday international tax law might also not be an easy task and push administrative feasibility to its limits. The Court effectively seems to propose a non-discriminatory deferral of taxation, combined with a domestic regime, that leads to a subsequent recapture if (and only if) the non-resident taxpayer becomes profitable during a subsequent tax year.
|Number of pages||97|
|Publication status||Published - 2020|