Belgian Dividend Tax Treatment of Nonresidents Illegal, ECJ Says

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1 Volume 68, Number 3 October 15, 2012 Belgian Dividend Tax Treatment of Nonresidents Illegal, ECJ Says by David Mussche Reprinted from Tax Notes Int l, October 15, 2012, p. 258

2 Reprinted from Tax Notes Int l, October 15, 2012, p. 258 Belgian Dividend Tax Treatment of Nonresidents Illegal, ECJ Says In a not-yet-published judgment issued in response to a request for a preliminary ruling in Tate & Lyle Investments Ltd. (C-384/11), the European Court of Justice has ruled that Belgium s dividend tax treatment of nonresident shareholders violates the free movement of capital. Facts The case concerned a partial demerger of a Belgian resident company, Tate & Lyle Europe (TLE). Under the Belgian rules on partial demergers, TLE s shareholders were deemed to have received a total dividend of approximately 248 million, corresponding to the difference between the fair market value of the demerged assets and the paid-in capital the assets represented. In principle, such a deemed dividend is subject to a 10 percent withholding tax, unless an exemption applies. The main exemption available in this case was the participation exemption, which provides for a full exemption from the withholding tax on dividends if the beneficiary is a qualifying company that holds (or is committed to holding) at least 10 percent of the shares in the distributing company for at least one year. However, because TLE s main shareholder, the British company Tate & Lyle Investments Ltd. (TLI), held only 5 percent of the company s shares, it did not qualify for the participation exemption. Hence, withholding tax at a rate of 10 percent was withheld from the dividend. TLI argued that the Belgian rules violate the free movement of capital because they treat non-belgian corporate shareholders significantly less favorably than Belgian corporate shareholders. Indeed, if TLI had been a Belgian resident company, it would have been able to offset the withholding tax against its final corporate tax liability. Also, Belgian corporate shareholders may qualify for the dividends received deduction (DRD), which excludes 95 percent of the dividend from the recipient s corporate tax base. As a result, only 5 percent of the COUNTRY DIGEST dividend is taxed, resulting in an effective tax rate on the total dividend of approximately 1.7 percent. If TLI had been a Belgian company, it would have qualified for the DRD because the acquisition value of its stake in TLE exceeded 1.2 million, which was the (alternative) threshold to benefit from the DRD at the time (the other being a shareholding of at least 10 percent). The tax administration rejected TLI s arguments. TLI then brought the case before the Brussels Court of First Instance, which on July 12 submitted the request for a preliminary ruling to the ECJ. Question The question at issue was whether the Belgian rules under which the withholding tax paid on dividend distributions is credited or possibly refunded if the shareholder is a resident company but not if the shareholder is a nonresident company coupled with the fact that nonresident companies do not qualify for the DRD, violate the free movement of capital? The ECJ s Judgment Before the Court, TLI reiterated its view that the Belgian rules discourage companies based in other EU member states from investing in Belgium. Indeed, without the opportunity to credit the withholding tax paid (and possibly obtain a refund) or to benefit from the DRD, the total tax burden on dividends distributed to nonresident corporate shareholders is substantially higher compared to their domestic counterparts. Belgium defended its position, arguing that the Belgian rules treat resident and nonresident corporate shareholders the same because in both cases, the dividend is subject to a withholding tax of 10 percent. Therefore, there can be no violation of EU law because similarly situated shareholders are treated similarly. The ECJ disagreed with Belgium s position. It first noted that resident and nonresident shareholders receiving dividends from a resident company, in principle, do not find themselves in similar situations because, for the nonresident shareholder, Belgium is only the source state and not the state of residence. Therefore, requiring Belgium to ensure that the dividend is TAX NOTES INTERNATIONAL OCTOBER 15,

3 COUNTRY DIGEST Reprinted from Tax Notes Int l, October 15, 2012, p. 258 not subject to double taxation would effectively constitute a waiver of the country s power to tax income generated by an economic activity performed within its territory. The Court went on to state, however, that when the source state decides, either unilaterally or by means of an agreement, to tax not only resident corporate shareholders but also nonresident corporate shareholders on dividends distributed by a Belgian company, a risk of economic double taxation arises by virtue of that decision and the resident and nonresident corporate shareholders are in a similar situation. The ECJ established that Belgium provides a remedy for such economic double taxation only if the beneficiary is a resident company. Therefore, similarly situated shareholders are treated differently, which is contrary to EU law unless the difference in treatment is justified by overriding reasons regarding the public interest. In the case at issue, however, no such justifications were raised. Therefore, the ECJ held that in principle, the Belgian rules violate the free movement of capital. The Court added, however, that Belgium could still comply with its obligations under the EC Treaty 1 if the discriminatory effect of its rules is neutralized by an income tax treaty between Belgium and the U.K. That is a question for the national court to settle, it said. Analysis This decision is unsurprising because it is in line with the Court s rulings in similar cases (as will be seen below). In this case, the ECJ issued an order, without an opinion by the advocate general, ruling that a withholding tax on dividends violates the free movement of capital if dividends paid to nonresident corporate shareholders are economically and thus covertly subject to a higher tax burden than dividends paid to resident corporate shareholders. Apparent vs. Covert Discrimination It is useful to distinguish between apparent and covert discrimination regarding withholding tax. 2 A withholding tax is apparently discriminatory when a member state chooses to levy it on dividends distributed to beneficiaries in other member states but not on dividends distributed to domestic beneficiaries (or to levy it at a lower rate). Similarly, a member state may enact different (that is, more beneficial) rules on the reduction of or exemptions from withholding tax in domestic cases. However, a member state may also discriminate covertly, meaning that the same tax rates or exemptions apply to both domestic and cross-border dividend distributions but, taken as a whole, cross-border dividends are subject to a higher tax burden than purely domestic distributions. In the case of a taxable partial demerger, Belgium applies withholding tax at a rate of 10 percent regardless of where the shareholders are located. Moreover, both domestic and foreign corporate shareholders can claim an exemption under the same conditions namely, they must hold (or be committed to holding) a shareholding of at least 10 percent for an uninterrupted period of one year. 3 Therefore, the Belgian system is not apparently discriminatory. However, taken as a whole, it is undeniable that resident corporate shareholders are better off than nonresident corporate shareholders when it comes to dividends received: The latter cannot credit the withholding tax paid against their corporate tax liability and therefore, the withholding tax constitutes their final tax. Also, nonresident shareholders do not qualify for the DRD. Hence, covert discrimination exists. In various cases, the ECJ has ruled that apparent discrimination may be a violation of EU law. 4 The case law on covertly discriminatory withholding taxes, however, is more recent. One clear precedent is European Commission v. Federal Republic of Germany (C-284/ 09), dated October 20, The facts of that case can be summarized as follows: The German rules provided for a percent withholding tax, regardless of the beneficiary s tax residency, but only beneficiaries that resided in Germany qualified for the DRD (under which 95 percent of the dividend received is exempt from corporate tax regardless of the size of the shareholding or the holding period). Moreover, a German corporate shareholder could credit the withholding tax paid. The similarities between European Commission v. Federal Republic of Germany and Tate & Lyle Investments Ltd. are striking, so it is unsurprising that in the latter case, the ECJ once again found the withholding tax rules to be incompatible with EU law. This is not the first time Belgium s withholding tax rules have come under fire. Indeed, the European 1 Now the Treaty on the Functioning of the European Union. 2 A. Huyghe and M. Doornaert, RV op dividenden beneden minimumdrempel: strijdig met EU-recht? Fisc. Int. 334, 1. For a more detailed analysis of the concept of covert discrimination, see also F. Vanistendael, Taxation and Non-Discrimination, A Reconsideration of Withholding Taxes in the OECD, World Tax Journal, June 2010, Sections 106(5)-(6) bis of the Royal Decree implementing the Belgian Income Tax Code. 4 See, e.g., Denkavit International (C-170/05), Dec. 14, 2006; Amurta (C-379/05), Nov. 8, 2007; Commission of the European Communities v. Italian Republic (C-540/07), Nov. 19, 2009; and European Commission v. Kingdom of Spain (C-487/08), June 3, OCTOBER 15, 2012 TAX NOTES INTERNATIONAL

4 Reprinted from Tax Notes Int l, October 15, 2012, p. 258 COUNTRY DIGEST Commission is of the opinion that Belgium, by maintaining different withholding tax rules for interest and dividends paid to Belgian investment companies and foreign investment companies, has not fulfilled its obligations under the EU Treaty. On July 19, 2011, the commission brought an action against Belgium before the ECJ. 5 In light of the Court s ruling in Tate & Lyle Investments Ltd., it is highly likely that the Court will rule in favor of the commission. Comparable Situations In order for a rule to be deemed discriminatory, similarly situated persons must be treated differently, or differently situated persons must be treated the same. Because resident and nonresident corporate shareholders are ultimately subject to a different tax burden on their Belgian-source dividends, the question arises as to whether these two types of shareholders are indeed similarly situated. At first glance, it appears that this question should be answered in the negative. After all, if the beneficiary of the dividends is a resident company, Belgium is the state of residence, whereas it is only the source state if the beneficiary is a nonresident company. Therefore, requiring Belgium to forgo taxation on dividends sourced in Belgium would appear to undermine Belgium s power to tax income generated within its territory. 6 As far as Belgian withholding tax is concerned, the ECJ appears to have confirmed this assumption in Truck Center (C-282/07), dated December 22, That case concerned the application of Belgian withholding tax to cross-border interest payments, while an exemption was available in purely domestic situations. 7 In Truck Center, the Court ruled that resident and nonresident companies are not in a similar situation for purposes of the withholding tax on interest. In the aforementioned cases involving the withholding tax on dividends, however, the ECJ explained why resident and nonresident corporate shareholders are similarly situated: Belgium, by unilaterally deciding to tax dividends originating from activities performed within its territory, creates a risk of double taxation. In other words, as far as the risk of economic double taxation is concerned, resident and nonresident corporate shareholders are indeed in a similar situation, meaning the possibility of discrimination exists. That reasoning, which was first expressed by Advocate General Leendert Geelhoed, is consistently applied by the 5 European Commission v. Kingdom of Belgium (C-387/11) (still pending). 6 See, e.g., Test Claimants in Class IV of the ACT Group Litigation (C-374/04), Dec. 12, 2006, paras Under sections 105(3)(b) and 107(2)(9) of the Royal Decree implementing the Belgian Income Tax Code. ECJ. 8 On the other hand, there is no risk of economic double taxation in the case of the withholding tax on interest because interest does not stem from a company s taxable profit. The Role of Treaty Law According to the ECJ, the discriminatory effect of Belgium s withholding tax rules could be neutralized by the Belgium-U.K. income tax treaty. The Court clarified, however, that in order to achieve that effect, it must be possible for the foreign taxpayer to deduct the Belgian withholding tax in full from its tax liability in the U.K. In other words, a full tax credit must be available. The ECJ does not investigate whether the treaty between Belgium and the U.K. provides for such a full tax credit, instead referring that question to the national court. This is in line with previous rulings: The ECJ has never considered bilateral tax treaties to be instruments of EU law, and therefore, as a matter of domestic law, they fall outside the Court s jurisdiction. 9 As it happens, the tax treaty between Belgium and the U.K. does not provide for a full tax credit. Because liquidation proceeds are not considered taxable income in the U.K., the latter state is not obliged to provide for a tax credit for (all) Belgian taxes paid on those proceeds or to reimburse the Belgian taxes paid. Therefore, it is unlikely that the Brussels Court of First Instance will find that the treaty is applicable in this case and can neutralize the discriminatory effects. It is debatable whether the Court s reference to the neutralization of source-state discrimination through the application of a tax treaty is relevant, let alone feasible. 10 A full tax credit, including a refund of excess tax, by the shareholder s state of residence is obviously neither required by the OECD model income tax treaty nor included in any treaty concluded by an OECD member state, because it could render the state of residence bankrupt. More fundamentally, it can be argued that the reference to the Belgium-U.K. tax treaty is moot in this case, considering the emphasis the Court has placed on 8 The ECJ follows Advocate General Geelhoed s opinion consistently, yet seems to refrain from taking a (too) general position, see G. Elmalis, Taxation of Cross-Border Dividends in Greece: In Line With EC Law Requirements, EC Tax Review 2010/1, 32. See also J. Bellingwout, Amurta: A Tribute to (the Late) Advocate-General Geelhoed, European Taxation, Mar. 2008, M. Lang, ECJ case law on cross-border dividend taxation recent developments, EC Tax Review 2008/2, For a more detailed analysis of this topic, see G. Koffler, Tax Treaty Neutralization of Source State Discrimination under the EU Fundamental Freedoms? Bulletin for International Taxation, Dec. 2011, 684. TAX NOTES INTERNATIONAL OCTOBER 15,

5 COUNTRY DIGEST Reprinted from Tax Notes Int l, October 15, 2012, p. 258 the avoidance of economic double taxation. It is doubtful that a tax treaty can neutralize potential economic double taxation, given that (leaving aside article 9 of the OECD model) those treaties are typically concluded to avoid legal, rather than economic, double taxation. Following the ECJ s reasoning that Belgium s unilateral decision to tax dividends originating from profits generated within its territory on a stand-alone basis gives rise to a risk of economic double taxation, it appears that the Belgian tax rules on outbound dividends violate EU law by definition, unless the applicable tax treaty, if any, were to provide for an exclusion of 95 percent of the dividend received from the beneficiary s tax base in the latter s country of residence (comparable to the Belgian DRD), which is obviously not the case in any tax treaty Belgium has concluded. Possibility to Claim Reimbursement Based on this judgment, companies located in other member states that were (unduly) obliged to pay withholding tax on Belgian-source dividends may file a claim for reimbursement. Moreover, based on the ECJ s case law in support of an extended geographic application of the free movement of capital principle, shareholders located in non-eu countries may also qualify for reimbursement. 11 Companies that were (unduly) obliged to pay withholding tax are, firstly, those that would have qualified for the DRD if they had been resident corporate shareholders that is, those having a shareholding with a value of at least 1.2 million (now 2.5 million), which is the alternative threshold to benefit from the DRD (the other being a shareholding of 10 percent or more). Belgian credit institutions, insurance companies, and 11 See, e.g., Santander (C /11), May 10, trading companies, for which no participation threshold existed for the DRD until tax year 2010, can claim back withholding tax paid, regardless of the size of their shareholding. The question arises as to whether companies that do not hold shares with a value of at least 1.2 million (now 2.5 million) can also claim reimbursement. If the company were a Belgian company, it would not have been able to benefit from the DRD; however, it could have credited the withholding tax paid against its corporate tax liability, with the excess, if any, being reimbursed. It is doubtful, however, that those companies would be successful in making such a claim, first because their situation differs from that described in Tate & Lyle Investments Ltd., and second, because the ECJ s emphasis was on the avoidance of economic double taxation, whereas the possibility of a withholding tax credit is more a matter of legal double taxation. 12 Companies that qualify for reimbursement may file a notice of objection with the Belgian tax administration. The statute of limitations for doing so is five years from January 1 of the year in which the tax was withheld. The literature suggests, however, that if the withholding tax (not entered in an assessment register) was unduly paid before January 1, 2011, an extended 10-year statute of limitations applies. 13 Alternatively, it is possible to file an application for tax relief within five years, starting from January 1 of the year in which the tax was withheld. David Mussche, tax lawyer, NautaDutilh, Brussels 12 See also N. Lenaerts and W. Oepen, Met EU-recht strijdige bronheffing: na Duitsland, België? Fisc. Int. 339, A. Huyghe and M. Doornaert, RV op dividenden beneden minimumdrempel: strijdig met EU-recht, Fisc. Int. 345, 1. 4 OCTOBER 15, 2012 TAX NOTES INTERNATIONAL

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