De danske sambeskatningsreglers forenelighed med EU-retten

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De danske sambeskatningsreglers forenelighed med EU-retten

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Title: De danske sambeskatningsreglers forenelighed med EU-retten
Med fokus på koncerners fradragsret til endelige underskud
Author: Jørgensen, Morten Isak
Abstract: The overall purpose of this thesis is to do an analysis of the compatibility of the Danish joint taxation rules with EU law with focus on group companies rights to deduct deficits that have been finally lost in other EU member states. The interest for this subject relates to a recent judgement issued by European Court of Justice (ECJ) on case C-650/16 (Bevola case) in which a Danish company was precluded from claiming a tax deduction in Denmark for a loss suffered by its permanent establishment (PE) in another EU country following cessation of its activities. The case is still pending at the Danish national court. The Danish Corporate Tax Act (CTA) introduced in 2005 applies a territoriality principle under reference to section 8 (2), whereby Danish companies cannot claim tax relief for losses suffered from foreign permanent establishments or subsidiary companies. Danish permanent establishments and Danish subsidiary companies, which are part of a Group, are subject to mandatory joint taxation consolidation treatment under section 31. However, the Danish CTA allows Group companies to elect international joint taxation under section 31 A, which means that all foreign entities must be included in Danish tax return and has a binding period of 10 years. In the Bevola case, the ECJ found that the Danish CTA was incompatible with the freedom of establishment as set forth in the Article 49 of the Treaty of the Functioning of the EU, when it does not allow tax relief for a final loss suffered by a PE registered in another EU member country. This approach is not considered proportionally with the EU freedom rights. This judgement falls in line with previous ECJ case law practice for final losses and is seen as continuation of the “Marks & Spencer” doctrine following case C-446/03. An amendment of section 8 (2) must be expected. The ECJ also found that even though the mandatory national Danish joint taxation regime does represent a restriction against the EU freedom rights, this restriction can be justified under reference to a number of overriding reasons justified for the law provision. The most interesting take away from the Bevola case is that the ECJ did not consider the Danish CTA option to elect an international joint taxation regime relevant for the overall assessment of compatibility of the Danish joint taxation rules with EU freedom rights. This judgement contradicts with the legal basis, which the Danish CTA for joint taxation rules was based on. This judgement by the ECJ is seen as an opportunity to ask if the current Danish CTA is due for reconsideration and replacement. The concepts of a group relief model for final losses and national group contribution schemes are highlighted as interesting schemes to modernize the Danish CTA system and to increase the EU compatibility. This approach is also considered to have interesting perspectives for introduction at a broader EU-level, which maybe could be a solution for harmonising a joint perception of the concept of final losses. Meanwhile, the ECJ role for judgements in new final loss cases is expected to continue given the uncertainty on how to clarify definitively the conditions for final losses.
URI: http://hdl.handle.net/10417/6321
Date: 2019-07-04
Pages: 54 s.
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