25.7.2016 |
EN |
Official Journal of the European Union |
C 270/25 |
Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — X Denmark A/S v Skatteministeriet
(Case C-118/16)
(2016/C 270/31)
Language of the case: Danish
Referring court
Østre Landsret
Parties to the main proceedings
Applicant: X Denmark A/S
Defendant: Skatteministeriet
Questions referred
1. |
Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?
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2. |
Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?
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3. |
Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive? |
4. |
Is it abuse, etc. under Directive 2003/49/EC if, in the Member State where the interest payer is resident, tax deductions are allowed for interest, whilst interest in the Member State where the interest recipient is resident is not taxed? |
5. |
Is a company resident in Luxembourg, established and registered under Luxembourg company law as a ‘société en commandite par actions’ (S.C.A.) and also classified as a ‘société d’investissement en capital à risque’ (SICAR) under the Luxembourg law of 15 June 2004 relating to the investment company in risk capital (SICAR), covered by Directive 2003/49/EC?
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6. |
Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner? |
7. |
If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, then preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State? |
8. |
If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:
The EU Court of Justice is requested to include the answer to question 7 in its answer to question 8. |
(1) Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States.