ECJ – Recent Developments in Direct Taxation 2014
1. Aufl. 2015
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I. S. 184Introduction
On , the ECJ issued its decision in C-190/12 Emerging Markets Series of DFA Investment Trust Company (hereinafter: Emerging Markets) case. This article aims at assessing this judgment and examining the impact it may have on the application of corporate income tax law in Poland and other Member States with regard to relations with third countries.
The case was instigated through a preliminary question from the Regional Administrative Court in Bydgoszcz, concerning Polish CIT regulations which exclude from the scope of a general income tax exemption investment funds established in third countries and the compatibility of those provisions with EU law – the free movement of capital in particular.
II. Facts and Applicable Law
Emerging Markets Series of DFA Investment Trust Company, a US investment vehicle, invested in private equity in Poland. It yielded dividend income which was subject to withholding tax in Poland at a 19 % tax rate, and reduced to 15 % under Article 11 Sec. 2b of the tax treaty between Poland and the USA.
The fund applied to the Polish tax authorities on 20 December 2010 for a tax refund, claiming that withholding tax on dividends paid out by ...