About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

8 Eur. Tax Stud. I-1 (2018)

handle is hein.journals/eurotaxs9 and id is 1 raw text is: Comparative studies Studi Tributari Europei. Vol.8 (2018) https://doi.org/1 0.6092/issn.2036-3583/9457 ISSN 2036-3583 The European Court of Justice and corporation tax: the Luxembourg Breviary Jacques Malherbe* October 2019 TABLE OF CONTENTS: 1. Introduction - 2. Treatment of profits - 3. Transfer pricing - 4. Treatment of losses - 5. Interest deduction - 6. Withholding taxes at source - 7. Transfer of registered office and contribution of assets - 8. Abuse of right - 9. Conclusion: the Luxembourg Breviary 1. Introduction The decisions of the Court of Justice of Luxembourg have repeatedly influenced Belgian tax law and require the corporate tax practitioner to acquire the European reflex alongside national reflexes. Examples are the carry-over of permanently taxed income in loss-making companies (Cobelfret), the prohibition of the allocation of Belgian losses to the income of foreign establishments exempted by treaty (Amid), the limitation of withholding tax on dividends paid to Luxembourg companies (Tate & Lyle). The same applies in all Member States. The case law that will be reviewed makes it possible to establish the principles to be followed and to find new arguments in new situations. While it was not until 1986 that the Court of Justice of the European Union, then the Court of Justice of the European Communities, ruled for the first time on direct taxes, the multiplication of its decisions since then, both under the Treaty and under directives adapted since 1990 in the same field, has given rise to a rich intra-European glossary. Thus, through the disputes submitted to the Court, a number of principles appear which form a European case law. The Court applies the general principle of non-discrimination, interpreted in the light of the freedoms of establishment, the provision of services and the movement of capital. More rarely, it is called upon to clarify the meaning of the directives. Corporate income tax is remodelled according to the preliminary questions referred by the courts or infringement proceedings brought by the Commission.1 It is * Universit6 de Louvain la Neuve (Belgium); M Jacques.Malherbe@simontbraun.eu 1. Cfr. D. Gutmann, Droit fiscal des affaires, 8th ed., 2017-2018, LGDJ, 2017, p. 71; A. Maitrot de la Motte, Droit fiscal de lUnion europ6enne, 2nd ed., Bruxelles, Bruylant, 2016, p. 131; B.J.M. Terra and P.J. Wattel, European Tax Law, 6th ed., Alphen aan den Rijn, Wolters Kluwer Law & Business, 2012, p. 37; S. van Thiel, EU Case Law on Income Tax, Part I, Amsterdam, IBFD, 2001, p. 36 ; Ph. Marchessou and B. Trescher, Droit fiscal international et europ6en, Bruxelles, Bruylant, 2018, p. 249; V.E. Englmair, in M. Lang, P. Pistone, J. Schuch, C. Staringer, ed., Introduction to European Tax Law: Direct Taxation, 3rd ed, Vienna, Linde Verlag, 2013, p. 44; Oellerich in Schaumburg, Englisch, Europiisches Steuerrecht, Cologne, Otto Schmidt, 2015, p. 95; R. Bufan, M. Buliga, J. Malherbe, N. Svidchi, Tratat de drept fiscal, vol. 2, Drept fiscal al Uniunii Europene, R. Bufan and J. Malherbe, coord., Bucharest, Ed. Hamangifi, 2016, p. 312. On the obligation to refer a question for a preliminary ruling where the provision of the law of the Union in question has not been interpreted in a way that leaves no room for doubt, C-416/17, European Commission v. French Republic (France, 2018). On the impossibility of entrusting arbitrators with the settlement of a dispute that may concern European law, since arbitrators cannot refer questions to the Court of Justice for a preliminary ruling, see C-284/16 Achmea (Slovakia Copyright @ 2018 Studi Tributari Europei I- 1 The text in this work is licensed under the Creative Commons Attribution-NonCommercial License. https://creativecommons.org/licenses/by-nc/4.0/

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most