Tax Treaty Case Law around the Globe 2023

1. Introduction

1.1. The Danish Benefit Ownership cases

The Danish case to be presented at the 2023 conference is the first decision by the Danish Supreme Court in a number of cases that are called the Danish Beneficial Ownership cases. The facts of the cases are similar to the facts of some of the cases on this subject that were decided by the Court of Justice of the European Union (CJEU) in 2019.

The Danish Beneficial Ownership cases dealt with the question of whether Denmark could refuse an exemption from withholding tax in situations where intermediary holding companies resident in other EU Member States had received dividends or interest. The dividends and interest payments were made by subsidiary companies resident in Denmark. The Danish tax authorities did consider the recipient intermediary holding companies to be mere conduit companies that were not the beneficial owner of the dividends or interest payments. These beneficial ownership cases concern situations that took place at a time before Denmark had implemented the relevant provisions on abuse in Directive 90/434 and Directive 2015/121/EU. The Grand Chamber of the CJEU delivered its two judgments in the combined Danish Be...