(December 30, 2014)

On December 30, 2014 the Dutch Ministry of Finance published a decree ammending the existing Fiscal Unity Decree from December 14, 2010.

 

On June 12, 2014 the European Court of Justice (CJEU) ruled in the Joined Cases C-39/13, C-40/13 and C-41/13. The CJEU ruled as follows:

 

In Cases C-39/13 and C-41/13, Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State under which a resident parent company can form a single tax entity with a resident sub-subsidiary where it holds that sub-subsidiary through one or more resident companies, but cannot where it holds that sub-subsidiary through non-resident companies which do not have a permanent establishment in that Member State.

 

In Case C-40/13, Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State under which treatment as a single tax entity is granted to a resident parent company which holds resident subsidiaries, but is precluded for resident sister companies the common parent company of which neither has its seat in that Member State nor has a permanent establishment there.

 

On December 11, 2014 the Upper Court of Amsterdam ruled in three cases. The rulings of the Upper Court of Amsterdam where in line with the ruling from the CJEU. On December 17, 2014 the Dutch Ministry of Finance issued a press release announcing that in the first half of 2015 a law proposal will be presented that is supposed to bring Dutch regulations in line with European law. In the same press release the Dutch Ministry stated that several taxpayers already filed requests to form a fiscal unity for Dutch corporate income tax purposes in situations similar to those on which the Court(s) ruled. In the press release the Ministry also announced that on short notice a Decree would be issued that under conditions would enable the Dutch tax authorities to approve such requests.

 

On December 30, 2014 the Dutch Ministry of Finance published a Decree ammending the existing Fiscal Unity Decree from December 14, 2010. (The Decree published on December 30, 2014 is actually dated December 16, 2014) According to the Decree the ammendments anticipate to an upcoming change in law and contains an approval to enable that under conditions requests to form a fiscal unity for Dutch corporate income tax purposes between sister entities which are owned by a top holding residing in an other EU/EER Member State or requests to form a fiscal unity for Dutch corporate income tax purposes between a Dutch parent entity owning an other Dutch entity/entities via (an) in-between holding company/companies that is/are (a) resident(s) of an other EU/EER Member State can be granted by the Dutch tax authorities.

 

The text of the Decree published on December 30, 2014 can be found as an attachment to this press release issued by the Ministry of Finance. Unfortunately the Decree is only available in the Dutch language. 

 

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