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  • Service: Tax, International Tax
  • Type: Regulatory update
  • Date: 11/8/2013

Poland - CJEU Advocate General addresses taxation of third-country shareholdings 

November 8: The Advocate General of the Court of Justice of the European Union (CJEU) this week issued an opinion concluding that different tax treatment for dividend payments made to investment funds in a third country (rather than to domestic investment funds) constitutes a restriction on the free movement of capital. Yet, the Advocate General found that this restriction may be justifiable if to protect the effectiveness of fiscal supervision.

The case is: Emerging Markets Series of DFA Investment Trust Company, C-190/12.


The Advocate General’s opinion is not binding on the CJEU, but is a proposal of a legal solution for the court. Now that the Advocate General has issued an opinion, the judges of the CJEU will begin deliberation in this case, with judgment to be given at a later date.

Background

The case was referred to the CJEU by Poland’s Administrative Court. The issue was whether the different tax treatment provided under Polish tax law for dividends paid to resident investment funds versus the treatment for dividends paid to non-resident investment funds was compatible with the free movement of capital.


The key question in this case is whether Polish tax authorities can verify information regarding the conditions applicable to a third-country investment fund in order to ascertain its comparability with Polish domestic funds.


Read a November 2013 report [PDF 56 KB] prepared by KPMG’s EU Tax Centre: Euro Tax Flash (8 November 2013)




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