ECJ Rules Dissolution of a Company Not the Same as Liquidation

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1 Volume 69, Number 7 February 18, 2013 ECJ Rules Dissolution of a Company Not the Same as Liquidation by Tom O Shea Reprinted from Tax Notes Int l, February 18, 2013, p. 675

2 ECJ Rules Dissolution of a Company Not the Same as Liquidation by Tom O Shea Tom O Shea is the academic director of the Master s in Taxation program at the Institute of Advanced Legal Studies at the University of London and a lecturer in tax law at the Centre for Commercial Law Studies at Queen Mary, University of London. In the first preliminary ruling concerning the concept of liquidation in article 4(1) of Directive 90/ 435/EC (the parent-subsidiary directive), 1 the European Court of Justice determined in Punch Graphix (C- 371/11) that the dissolution of a company in the context of a merger by acquisition cannot be considered to be such a liquidation. Background This case involved Belgian tax rules and concerned a silent merger concluded between three Belgian companies whereby under a merger by acquisition operation two companies were dissolved without going into liquidation and all their assets were transferred to their 100 percent shareholder, Strobbe Graphics. This company subsequently was renamed Punch Graphix. The merger generated a merger surplus (gain) of million, and 95 percent of that amount could be deducted from its taxable profits as definitively taxed income. However, in the 2002 tax year Punch Graphix s taxable profits only amounted to million so that the difference could not be deducted in that tax year. Subsequently, in 2007, Punch Graphix argued that limiting the definitively taxed income to the amount of the profits for the year in which the merger surplus was 1 Note that the parent-subsidiary directive was replaced in 2011, after a number of amendments, by Council Directive 2011/96/EU of Nov. 30, 2011 (OJ 2011 L 345, p. 8). generated was incompatible with article 4(1) of the parent-subsidiary directive. It requested that the definitively taxed income, which had not been applied in the 2002 tax year, be applied in the 2003 tax year. That request was denied by the Belgian tax authorities. On appeal, the court rejected Punch Graphix s application, ruling that the merger surplus was covered by the exception in article 4(1) of the parent-subsidiary directive, namely because it involved a liquidation of subsidiaries. Punch Graphix appealed to the Hof van Beroep te Gent (the Court of Appeal, Ghent), which stayed the proceedings and sent a preliminary ruling reference request to the ECJ asking whether a merger by acquisition could be treated as a liquidation for the purposes of the exception in article 4(1) of the parent-subsidiary directive. Concept of Liquidation The Court noted that under the Belgian legislation, which implemented the parent-subsidiary directive, the dissolution of a company in the context of a merger by acquisition is considered to be a liquidation falling within the exception in article 4(1) of the parentsubsidiary directive, which states that: Where a parent company or its permanent establishment, by virtue of the association of the parent company with its subsidiary, receives distributed profits, the Member State of the parent company and the Member State of its permanent establishment shall, except when the subsidiary is liquidated, either: TAX NOTES INTERNATIONAL FEBRUARY 18,

3 FEATURED PERSPECTIVES (a) refrain from taxing such profits; or (b) tax such profits while authorising the parent company and the permanent establishment to deduct from the amount of tax due that fraction of the corporation tax related to those profits and paid by the subsidiary and any lower-tier subsidiary. [Emphasis added.] The Court observed that the parent-subsidiary directive did not contain a definition of liquidation. Accordingly, the Court examined Council Directive 90/434 (the merger directive) and noted that article 2(a) of the merger directive did contain a definition of a merger that referred to liquidation. Merger by Acquisition The Court pointed out that article 2(a) of the merger directive provided that a merger is an operation whereby a company, on being dissolved without going into liquidation, transfers all its assets and liabilities to the company holding all the securities representing its capital. 2 The Court explained that even though the definition of merger appears in the merger directive and not in the parent-subsidiary directive, that does not prevent that definition from being taken into account for the purposes of the interpretation of the concept of liquidation within the meaning of Article 4(1) of Directive 90/ Same Objectives The Court highlighted that the proposals for the parent-subsidiary directive and the merger directive were submitted on the same day and adopted on the same day by the Council of the EU. Moreover, the Court noted that the two directives have the same objective: to abolish restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States for the operations covered by those directives... Accordingly, those directives, governing different types of transnational cooperation between companies, constitute... a whole, in that they complement each other. 4 The Court s Conclusion Consequently, the Court determined that the definition of merger in the merger directive: is also relevant for the interpretation of the concept of liquidation within the meaning of Article 4(1) of Directive 90/435, so that the dissolution of a company in the context of a merger by acquisition cannot be considered to be a liquidation within the meaning of [the parentsubsidiary directive]. 5 Analysis In Punch Graphix, the Court determined that the concept of liquidation in the parent-subsidiary directive must take into account the concept of merger in article 2(a) of the merger directive, so that the dissolution of a company in the context of a merger by acquisition cannot be considered to be a liquidation within the meaning of article 4(1) of the parent-subsidiary directive. In other words, the concept of liquidation in the parent-subsidiary directive must be interpreted narrowly and even if the merger directive limits are placed on the concept of liquidation in the context of the parentsubsidiary directive, a PE would still have to remain in Belgium in order to protect Belgium s taxation rights regarding the assets of the PE if a merger by acquisition took place. Linking Parent-Subsidiary and Merger Directives It is important to understand the Court s explanation for using the definition of merger in the merger directive in order to assist with the interpretation of the concept of liquidation in the parent-subsidiary directive, an entirely different piece of EU secondary legislation. While the Court noted that the definition of a merger appears in the merger directive and not in the parent-subsidiary directive, it pointed out that: that fact does not prevent that definition from being taken into account for the purposes of the interpretation of the concept of liquidation within the meaning of Article 4(1) of Directive 90/ The Court explained that the proposal for the parentsubsidiary directive was submitted on the same day by the European Commission as the proposal for the merger directive. Moreover, those two directives were adopted by the Council of the EU on the same day and had to be transposed into the national legal systems of the EU member states simultaneously. The Court also observed that the two directives had the same objective to abolish restrictions, disadvantages or distortions arising in particular from the tax provisions of the Member States for the operations covered by those directives. 7 Consequently, the Court determined that those directives, governing different types of transnational cooperation between companies, constitute, according to the legislature s plan, a whole, in that they complement each other. 8 2 Punch Graphix, para Id. at para Id. at para Id. at para Id. at para Id. at para Id. 676 FEBRUARY 18, 2013 TAX NOTES INTERNATIONAL

4 Accordingly, Belgium was not entitled to deem a merger by acquisition to be a liquidation by using a deeming provision in its national legislation because such a deeming provision excluded a merger by way of acquisition from the benefits of the rule laid down in article 4(1) of the parent-subsidiary directive. 9 See Oy AA, para. 26. The Liquidation Exception The judgment of the Court in Punch Graphix makes it clear that the benefits of the parent-subsidiary directive in article 4(1) do not extend to subsidiary companies in liquidation. This raises the question whether distributions of profits from subsidiaries in liquidation qualify for benefits under articles 5 and 6 of the parent-subsidiary directive. Under the parent-subsidiary directive, it is clear that the correct procedure for a company that wishes to liquidate is to declare a dividend before it goes into liquidation. Such a dividend should qualify for the benefits of the parent-subsidiary directive if all the appropriate conditions are met. However, other profits of the company in liquidation do not appear to fall within the scope of the parent-subsidiary directive. In Oy AA (C-231/05), the Court commented that: Directive 90/435 governs the tax treatment of dividends and other benefits distributed by a subsidiary to its parent company, first by providing in Article 4 that, where a parent company receives profits, the Member State of the parent company shall either refrain from taxing the profits distributed by the subsidiary, or shall tax them while authorising the parent company to deduct from the amount of its tax that fraction of the corporation tax paid by the subsidiary which relates to those profits, and secondly by providing, in Articles 5 and 6, that withholding tax on those profits may not be charged. [Emphasis added.] 9 The Court s reference to those profits in its commentary on articles 5 and 6 clearly links that phrase to the profits distributed under article 4. It seems clear from the Court s comment that the notion of distributed profits goes beyond the concept of dividends, hence its reference to and other benefits. Whether these words could stretch to liquidation gains is unlikely given that article 4(1) clearly excludes subsidiary companies in liquidation from the scope of the parentsubsidiary directive and that the Court links articles 4, 5, and 6 in determining the meaning of profits. Further, in relation to article 6 of the parent-subsidiary directive, the Court has observed in FII GLO (1) (C- 446/04) that: As regards the prohibition laid down by Article 5 of Directive 90/435 on Member States levying a withholding tax on profits distributed by a resident subsidiary to its parent company, when that parent company is resident in another Member State, the Court has already held that any tax on income received in the State in which dividends are distributed is a withholding tax on distributed profits where the chargeable event for the tax is the payment of dividends or of any other income from shares, the taxable amount is the income from those shares and the taxable person is the holder of the shares. [Emphasis added.] 10 The Court went on to stress that: [the] expression withholding tax must be given a similar interpretation for the purposes of Article 6 of Directive 90/435. There is thus a withholding tax for the purposes of that article in the case of every tax on income received by a parent company from a subsidiary established in another Member State, the chargeable event being the payment of dividends or of any other income from shares, where the taxable amount is the income from those shares and the taxable person is the holder of those shares. [Emphasis added.] 11 Therefore, the emphasis is on dividends and income from shares, which differ from liquidation gains in that the former represent revenue income from retained capital investments whereas the latter generally concern income generated from capital disposals. Further support is found in P. Ferrero e C. SpA (Joined Cases C-338/08 and C-339/08), in which the Court discussed the concept of withholding tax in article 5(1) and noted that: it is settled case-law that any tax on income received in the State in which dividends are distributed is a withholding tax on distributed profits for the purposes of Article 5(1) of the Directive where the chargeable event for the tax is the payment of dividends or of any other income from shares, the taxable amount is the income from those shares and the taxable person is the holder of the shares. [Emphasis added.] 12 Thus, the Court was concerned not with income from capital disposals/transactions, but with a tax on income, dividends, and income from shares. Moreover, in Gaz de France (C-247/08), the Court highlighted that: In order to ensure the neutrality, from the tax point of view, of the distribution of profits by a subsidiary established in one Member State to its parent company established in another Member State, Directive 90/435 aims to avoid economic double taxation of profits, in other words, to 10 FII GLO (1), para Id. at para Ferrero, para. 26. FEATURED PERSPECTIVES TAX NOTES INTERNATIONAL FEBRUARY 18,

5 FEATURED PERSPECTIVES avoid taxation of distributed profits first in the hands of the subsidiary and then in the hands of the parent company... To that effect, Article 5(1) of Directive 90/435 requires the Member States to exempt from withholding tax profits distributed by a subsidiary to its parent company where the latter holds a minimum of 25 [percent] of the capital of the subsidiary...however,although under Directive 90/435 that obligation is placed on the Member States only as regards profit distributions accruing to companies which may be regarded as such within the meaning of the directive,itis sufficient to point out that the directive does not authorise a Member State to treat profits distributed to companies in other Member States which do not fall within the scope of the directive less favourably than profits distributed to comparable companies established in its territory. [Emphasis added.] 13 The words in italics indicate that some profit distributions do not fall within the scope of the parentsubsidiary directive. In such situations, it will be a matter for each member state to ensure that its national rules, dealing with such distributions, comply with EU law. In Aberdeen Property (C-303/07), the Court pointed out that: Only for distributions of dividends within the scope of Directive 90/435 does Article 5 of that directive require the Member States to exempt from withholding tax dividends distributed by a subsidiary to its parent company. [Emphasis added.] 14 Thus, the Court assumes that distribution of profits in article 5 of the parent-subsidiary directive refers to dividends and it is happy to use these concepts interchangeably. The Court echoes this reasoning in Cobelfret (C-138/ 07). The Court interprets article 4(1) of the parentsubsidiary directive as referring to dividends in paragraph 31, where it stated that: Article 4(1) of Directive 90/435 expressly leaves it open to Member States to choose between the exemption system and the imputation system, which, in the case of shareholders receiving those dividends, do not necessarily lead to the same result. [Emphasis added.] The Court makes a further reference in paragraph 34, commenting that The first indent of Article 4(1) of the directive does not lay down, in particular, any condition that there must be other taxable profits in order for the dividends received by the parent company not to be subject to taxation (emphasis added). Moreover, there are numerous references to dividends in subsequent paragraphs of the judgment. Similarly, there are references to dividends in paragraph 41 of Les Vergers du Vieux Tauves SA (C-48/07), where the Court observed that: First, Article 4(1) of Directive 90/435 covers the situation in which a parent company, by virtue of its association with its subsidiary, receives distributed profits. However, the usufructuary of the shares of a company receives dividends distributed by the latter by virtue of its right of usufruct. Its legal position vis-à-vis the subsidiary is not such as to endow it with the status of shareholder, as that position results solely from the right of usufruct that has been transferred to it by the owner of the shares in the capital of the subsidiary. [Emphasis added.] The Court continues in paragraph 45 by stating that: Community law requires, with respect to crossborder situations, that a Member State which, with a view to avoiding the double taxation of dividends, exempts from tax both dividends distributed to a company holding shares in the distributing company with full title and those distributed to a company holding such shares in usufruct, should apply the same tax treatment to dividends received by a resident company from another resident company as it applies to those received by a resident company from a company established in another Member State. [Emphasis added.] Thus, the Court equates distributed profits with dividends and uses the terms interchangeably. Also, there may be some relevance to the phrase by virtue of its association with its subsidiary given that, in a liquidation scenario, this association link is terminated. Finally, in Burda (C-284/06), the Court adopts a similar commentary, stating that: As regards, in particular, the prohibition laid down in Article 5 of Directive 90/435 on Member States levying a withholding tax on profits distributed by a resident subsidiary to its parent company, where that parent company is resident in another Member State, the Court has already held that any tax on income received in the State in which dividends are distributed is a withholding tax on distributed profits where the chargeable event for the tax is the payment of dividends or of any other income from shares, the taxable amount is the income from those shares and the taxable person is the holder of the shares. [Emphasis added.] 15 The Court goes on to determine the applicable freedom and notes that: 13 See Gaz de France, paras See Aberdeen Property, para Burda, para FEBRUARY 18, 2013 TAX NOTES INTERNATIONAL

6 the dispute before the referring court relates exclusively to the effect of the national legislation...on the situation of a resident company which has distributed dividends to shareholders whose holding gives them definite influence over the decisions of that company and enables them to determine its activities. [Emphasis added.] Id. at para. 72. FEATURED PERSPECTIVES Thus, in all of these cases, the focus of the parentsubsidiary directive (and the Court s commentaries) is on income from shares and there are specific references to dividends. It seems clear, therefore, that the liquidation exception in article 4(1) of the parent-subsidiary directive also applies to the concept of profits in articles 5 and 6 of the parent-subsidiary directive. TAX NOTES INTERNATIONAL FEBRUARY 18,

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