CFE ECJ Task Force: Opinion Statement ECJ-TF 3/2019 on the ECJ Decision of 22 November 2018 in Sofina (Case C-575/17) on Withholding Taxes, Losses and Territoriality

Eric Kemmeren, Alfredo Prats, Werner Haslehner, Volker Heydt, Michael Lang, Georg Kofler, João Nogueira, Pasquale Pistone, Stella Raventos-Calvo, Raingeard de la Blétière, Isabelle Richelle, Alexander Rust, Rupert Shiers

Research output: Contribution to journalArticleProfessional

Abstract

The CFE Tax Advisers Europe note that the Court’s decision in Sofina may have extended the standard of comparability, requiring (foreign) non-dividend income of the recipient to be taken into consideration in comparing the tax treatment of domestic and outbound dividends. This comparator, however, upsets the principle of territoriality, as accepted by the Court in Futura (Case C-250/95) and Centro Equestre (Case C-345/04), by requiring the source state to take into account losses that the non-resident taxpayer has in the residence state.

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.
Original languageEnglish
Pages (from-to)91
Number of pages97
JournalEuropean Taxation
Volume60
Issue number2/3
Publication statusPublished - 2020

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