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25.07.2018

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Refusal to refund withholding tax on dividends – current version of Section 50d (3) of the German Income Tax also violates European Law

Only half a year after the 2007 version of Section 50d (3) of the German Income Tax Act was declared as unlawful by the European Court of Justice (see our beinformed dated February 14, 2018), the current version has also suffered the same fate. As an anti-treaty-shopping rule, Section 50d (3) German Income Tax Act prevents, under certain conditions, exemptions or refunds of withholding taxes on dividends paid by German subsidiaries to their European parent companies. The European Court of Justice already decided on December 20, 2017, that the 2007 version of the Section 50d (3) German Income Tax Act violates both the Parent-Subsidiary Directive and the freedom of establishment (joint cases C 504/16 “Deister Holding” and C 613/16 “Juhler Holding”). On June 14, 2018, the European Court of Justice reached the same conclusion (C 440/17) with regard to the provision’s current version.

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