CJEU – Recent Developments in Direct Taxation 2017

1. S. 155Introduction

In this contribution, the author will discuss again a case concerning the Dutch dividend withholding tax. Dividend withholding taxes have been assessed for their consistency with EU law in cases referred from several Member States. As a result, a large body of case law has been developed on dividend withholding taxes (DWHT). Nevertheless, on many issues, a lack of clarity or inconsistency between the DWHT and EU law is still present. The case to be discussed in this chapter exhibits a number of still existing open questions, at least according to the Dutch Supreme Court.

This case deals with a claim for refund of Dutch DWHT by a non-resident portfolio shareholder, more precisely, a German resident investment fund, which was refused by the tax authorities. The case focuses on the question of whether the situation of this investment fund is comparable with a Netherlands resident fiscal investment institution (FII) which would have been entitled to a refund of Dutch DWHT. The case does not address issues concerning justification of the different treatment, such as the rule of reason test, i.e. whether one or more of the aims of the tax rules concerned can be classified a...