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On September 30, 2021, on the website of the Dutch courts (De Rechtspraak) the judgment of the Court of Appeal of The Hague in Case number: BK-19/00759, ECLI:NL:GHDHA:2021:1714 was published. In the underlying case the taxpayer and the tax authorities are disputing whether or not the taxpayer is entitled to take a liquidation loss into account with respect to the liquidation of 2 of its (indirect) Irish subsidiaries.
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The OECD has announced that on September 28, 2021 Spain deposited its instrument of ratification for the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (The MLI). Andorra followed a day later (September 29, 2021). On September 30, 2021 Namibia signed the MLI.
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Op 29 september 2021 heeft de staatssecretaris van Financiën aan de Tweede Kamer een reactie op de motie van het lid Amhaouch (CDA) c.s. waarin het kabinet wordt verzocht beleidsvarianten te verkennen voor invoering van een tijdelijke solidariteitsheffing voor bedrijven die in de coronacrisis extra winst hebben gemaakt, waarbij bedrijven die ondersteuning nodig hebben worden ontzien gestuurd. Naar de mening van het kabinet is het niet opportuun een solidariteitsheffing in te voeren met terugwerkende kracht (materieel of formeel) en een rechtstreeks verband tussen de winst en de coronacrisis is complex en bewerkelijk.
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On September 29, 2021 The European Commission opened the first phase of a public consultation: “Withholding taxes - new EU system to avoid double taxation”. During this phase European Commission searches for input for a so-called inception impact assessment. The period during which input can be given for the inception impact assessment runs from September 28, 2021 until October 26, 2021 (midnight Brussels time).
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On October 26, 2021 (13.00 CET- 18.00 CET) the German Federal Ministry of Finance will host its 8th Symposium on International Tax Policy. This time the results of the two-pillar project will be the focus of the discussions. The symposium will be an online event which will be held in English. People who are interested in the symposium have to register upfront for each participant individually.
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On September 28, 2021 the Council of the European Union adopted its position at first reading on proposed amendments to the directive on the disclosure of income tax information by certain undertakings and branches, commonly referred to as the public country-by-country reporting (CBCR) directive (Directive 2013/34/EU), paving the way for its final adoption. The adoption of the Council’s position follows a provisional agreement reached with the European Parliament in June.
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On September 23, 2021 the key decisions of the European Commission’s September infringements package were published. The key decisions include a.o. 3 letters of formal notice.
· In the first one the Commission calls on Cyprus to amend its legislation transposing EU anti-tax avoidance rules on the grounds of incorrect transposition of the interest limitation rule of the Anti-Tax Avoidance Directive (Article 4 of the Council Directive (EU) 2016/1164);
· In the second letter of formal notice the Commission requests that the Czech Republic communicates all required national measures fully implementing Council Directive (EU) 2017/952 of 29 May 2017 amending Directive 2016/1164 (ATAD1) as regards hybrid mismatches with third countries (ATAD2); and
· The third letter was sent to Greece for not applying properly EU rules on second-hand vehicles purchased in other EU Member States.
Next to the letters of formal notice the European Commission also sent a reasoned opinion to Italy for failing to notify measures for the transposition into national law of Directive (EU) 2018/1910 (the VAT ‘Quick Fixes' Directive).
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On September 17, 2021, The Dutch Minister of Finance informed the Dutch Parliament that the Netherlands together with Belgium, France, Italy and Spain has filed a non-paper at expert level with the European Commission.
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On September 17, 2021, on the website of the Dutch courts (De Rechtspraak) the opinion of Advocate-General Wattel in Case number: 21/00415, ECLI:NL:PHR:2021:769 was published. The taxpayer in the underlying case is a French Société anonyme (SA) with a Permanent establishment (PE) in the Netherlands. The assets of the Dutch PE include a.o. a shareholding in B NV. The taxpayer acquired this shareholding in 2007 by an exchange of shares and the issuing of convertible bonds. The exchanging shareholders in B could choose between newly to be issued shares in the SA or Obligations Remboursale en Actions (ORAs: convertible bonds) to be issued by the SA. The SA incurred costs of €9,424,557 with respect to the issuing of the ORAs and €34,700,000 with respect to the issuing of the new shares (hereafter together called “issuing costs”).
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On September 16, 2021 on the website of the Court of Justice of the European Union (CJEU) the judgment of the ECJ in Case C‑337/19 P, European Commission versus Kingdom of Belgium and Magnetrol International (ECLI:EU:C:2021:741), was published.
Summary
In today’s judgment, the Court of Justice notes that, for a state measure to be classified as an aid scheme, three cumulative conditions must be satisfied. First, aid may be granted individually to undertakings on the basis of an act. Secondly, no further implementing measure is required for that aid to be granted. Thirdly, undertakings to which individual aid may be granted must be defined ‘in a general and abstract manner’.
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