Austrian Dividend Taxation Rules Are Partially Unacceptable, ECJ Says

Volume 61, Number 12 March 21, 2011 Austrian Dividend Taxation Rules Are Partially Unacceptable, ECJ Says by Tom O Shea Reprinted from Tax Notes Int l, March 21, 2011, p. 927

Austrian Dividend Taxation Rules Are Partially Unacceptable, ECJ Says by Tom O Shea Tom O Shea is the academic director of the MA 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 joined cases Haribo Lakritzen Hans Riegel BetriebsgmbH v. Finanzamt Linz (C-436/08) and Österreichische Salinen AG v. Finanzamt Linz (C-437/08), the European Court of Justice analyzed the Austrian taxation system concerning portfolio dividends and concluded that some of the rules on dividends received from non-eu member states were in breach of the free movement of capital. Background Haribo and Salinen are companies resident in Austria that received dividends from an investment fund, including dividends paid by companies located in other EU member states and in nonmember states. In the 2002 tax year, Salinen received such dividend income but suffered an operating loss in that year. Austria applied an exemption system for dividends received from companies resident in Austria but not for nonresident companies. Haribo and Salinen argued that this different treatment infringed their free movement of capital rights. The ECJ joined the two cases and delivered a single judgment. Which Freedom Applied? The ECJ determined that the tax treatment of dividends could fall within article 49 of the Treaty on the Functioning of the EU (TFEU) on freedom of establishment or article 63 of the TFEU on the free movement of capital. However, the Austrian rules in question applied only to shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking. Accordingly, article 63 of the TFEU (capital) was the freedom at issue because both disputes concerned the taxation in Austria of dividends received by resident companies from holdings they have in nonresident companies amounting to less than 10 percent of the capital of the nonresident companies. Haribo: Question 1 The first question before the Court concerned the different treatment of portfolio dividends received from European Economic Area states (Norway, Liechtenstein, and Iceland for the purposes of this discussion) that were exempt from tax only if Austria had concluded a mutual assistance agreement regarding administrative matters and enforcement with the relevant EEA state. Austria did not impose this requirement if the dividends received from EEA states involved direct investments (when at least 10 percent shareholdings were maintained in the dividend distributing company for at least one year). Restriction on Free Movement of Capital The Court determined that the Austrian tax rules amounted to a restriction on the free movement of capital because they imposed an additional condition on dividends received from nonresident companies compared with those received from Austrian resident companies. This could result in a permanent regime of nonexemption from tax for portfolio dividends received from EEA companies. TAX NOTES INTERNATIONAL MARCH 21, 2011 927

FEATURED PERSPECTIVES Justification The ECJ rejected Austria s justifications for its rules, pointing out that in circumstances when a member state had a system for preventing economic double taxation, a corporate shareholder resident in Austria that received dividends from nonresident companies was in a comparable situation to that of a corporate shareholder receiving domestic dividends. The Court explained that comparability existed because in each situation the profits made were, in principle, liable to a series of charges to tax. Accordingly, the difference in tax treatment could not be justified by a difference in situation connected with the place where the capital had been invested. Effectiveness of Fiscal Supervision The Court also rejected the justification that the different tax treatment was necessary to ensure the effectiveness of fiscal supervision. The ECJ explained that under the Austrian regime, portfolio dividends from EEA states were exempt from tax only if a mutual assistance agreement was in place with that state, not only at the administrative level, but also regarding enforcement. However, the ECJ pointed out that only an agreement for administrative assistance could be regarded as being necessary for the purpose of enabling Austria to establish the actual level of taxation of the nonresident company distributing the dividends. The recovery of taxes by Austria was irrelevant in these circumstances. Accordingly, the Austrian rules were prohibited by article 63 of the TFEU, since only an agreement for mutual assistance regarding administrative matters was necessary to attain the objectives of the legislation in question. Haribo: Question 2 The second question considered by the ECJ concerned the Austrian rules that applied the credit method to portfolio dividends distributed by companies established in other member states and in EEA states when it was not established that the conditions for the tax exemption were met, while both the proof of the conditions for the exemption method and the data necessary for the crediting of the foreign corporation tax could not be provided by the Austrian resident corporate shareholder, or could be provided only with great difficulty. The Court concluded that this difference in tax treatment had the effect of discouraging Austrian resident companies from investing capital in companies established in other member states and in EEA states. This amounted to a restriction on article 63 of the TFEU. Two Conditions The ECJ pointed out that it was acceptable for Austria to operate an exemption method for domestic dividends and the credit method for foreign-source dividends provided that two conditions were met. First, the tax rate applied to foreign-source dividends could not be higher than the rate applied to domestic dividends, and second, the tax credit granted in Austria must be at least a credit for the corporation tax paid in the other state up to the level of the Austrian tax on that dividend income. The Court said that in those circumstances, the credit method enabled dividends from nonresident companies to be accorded treatment equivalent to that accorded, by the exemption method, to dividends paid by resident companies. The Court explained that the credit method ensured that foreignsource and Austrian portfolio dividends bore the same tax burden, in particular when a lower tax rate was applied in the source state. In that case, the credit method ensured that taxpayers who had invested in foreign companies did not receive an advantage compared with those who invested in Austrian companies. Accordingly, the Court found equivalence between the exemption and credit methods. Excessive Administrative Burden The ECJ rejected the argument that the credit method imposed excessive additional administrative burdens, indicating that the Austrian tax authorities were entitled to require the taxpayer to provide whatever proof they considered necessary to determine whether the conditions for the tax advantage had been met, and consequently, whether that tax advantage should be granted. However, the Court noted that such equivalence between the credit method and exemption method would not exist when the excessive administrative burden made it impossible to benefit from the credit method, because the Austrian rules would not enable the economic double taxation of the dividends to be prevented or mitigated. The Court noted that the Austrian authorities demanded information relating to the tax that was actually charged on the profits of the distributing company in its state of residence, which is an intrinsic part of the very operation of the credit method and cannot be regarded as excessive because, in the absence of that information, the Austrian tax authorities would not be in a position to determine the amount of corporation tax paid in the state of the distributing company that must be credited against the amount of tax payable by the recipient company. The Court stressed that any problem that the recipient company might have in providing the necessary information was not connected to the complexity of the information but to the possible lack of cooperation on the part of the company that has the information. The Court also indicated that just because the Austrian authorities could have recourse to Mutual Assistance Directive 77/799, that did not mean that the company receiving the dividends did not have to provide the tax authorities with proof of the tax paid in the member state of the distributing company. The same holds true if a convention for mutual assistance existed between Austria and any of the EEA states. Haribo: Question 3 The third question analyzed by the ECJ concerned Austria s different tax treatment of portfolio dividends 928 MARCH 21, 2011 TAX NOTES INTERNATIONAL

received by Austrian resident companies from companies established in nonmember states (other than EEA states) that were neither exempt nor granted a credit, whereas dividends received from similar shareholdings in Austrian resident companies were always exempt. The Court concluded that such treatment amounted to a restriction of article 63 of the TFEU. Lack of reciprocity could not justify a restriction on the free movement of capital between member and nonmember states. FEATURED PERSPECTIVES The Court noted that the situation of a corporate shareholder receiving dividends from a nonmember state was comparable to that of a corporate shareholder receiving dividends from an Austrian resident company because, in each case, the profits of the distributing company were liable to be subject to tax. However, the Austrian rules did not provide for equivalent treatment because while domestic dividends benefited from an exemption system, portfolio dividends received from a company established in a nonmember state (other than an EEA state) were not exempt and did not receive a credit. The Court held that this difference in treatment could not be justified by a difference in situation connected with the place where the capital was invested. Balanced Allocation of the Power to Impose Taxes The Austrian government argued that its rules were justified by the need to ensure a balanced allocation of the power to impose taxes between the member states and nonmember states (other than EEA states). The ECJ accepted that such a justification could exist, but pointed out that the difference in tax treatment had to be appropriate for attaining the objective invoked and could not go beyond what was necessary to attain it. The Court rejected this justification because treatment of portfolio dividends in the same way whether received from Austrian resident companies or from a company established in a nonmember state (other than an EEA state) would not result in income normally taxable in Austria being transferred to the nonmember state concerned. The Court observed that the Austrian rules at issue did not concern the power to impose taxes regarding economic activities carried on in Austria, but concerned the taxation of foreign income. Lack of Reciprocity Austria also argued that its power to enter into income tax treaties with nonmember states (other than EEA states) might be jeopardized if article 63 of the TFEU obliged the member states to treat dividends from the nonmember states in the same way as domestic dividends. The ECJ also rejected this justification, saying that when the member states extended the free movement of capital to nonmember states, they did so on the same terms as movements of capital within the EU. Therefore, lack of reciprocity could not justify a restriction on the free movement of capital between member states and those nonmember states. Effectiveness of Fiscal Supervision Austria argued that its tax regime was justified by the need to ensure the effectiveness of fiscal supervision because its treaty network did not guarantee the same level of administrative assistance as Directive 77/ 799. The ECJ accepted that when the national rules made the granting of a tax advantage dependent on the satisfaction of certain conditions that can be verified only through the exchange of information with the nonmember states (other than EEA states), it was legitimate in principle for member states to refuse to grant that tax advantage if it proved impossible to obtain the necessary information. However, in this instance, the Austrian rules did not make the granting of the credit or exemption on the basis of the existence of mutual assistance. Under the Austrian rules, portfolio dividends from nonmember states (other than EEA states) were always subject to corporation tax in Austria, and the Austrian rules did not provide for any tax advantage in order to prevent their economic double taxation. Therefore, the lack of mutual assistance between member states and the nonmember states in question could not justify a different tax treatment of domestic portfolio dividends compared with portfolio dividends received from nonmember states (other than EEA states). Direct Investments The ECJ also rejected the Austrian argument that the holdings in companies established in nonmember states may be direct investments covered by the exception in article 64(1) of the TFEU. However, the Court pointed out that the holdings in question were not acquired with a view to establishing or maintaining lasting and direct economic links between the shareholder and that company and did not allow the shareholder to participate effectively in the management of that company or in its control. Consequently, the holdings could not be regarded as direct investments and the Austrian rules in question only concerned portfolio dividends. Haribo: Question 4 The next question asked whether article 63 of the TFEU prohibited Austrian rules from applying the credit method to portfolio dividends from EEA states with which Austria had not concluded a comprehensive agreement on administrative matters and enforcement or in relation to other nonmember states in situations when the inapplicability of the 10 percent shareholding threshold (for direct investments) would give rise to a tax exemption and, therefore, automatically prevent economic double taxation for portfolio TAX NOTES INTERNATIONAL MARCH 21, 2011 929

FEATURED PERSPECTIVES dividends received from companies established in nonmember states. The ECJ echoed its earlier statement that EU law did not prevent a member state from using the exemption method for domestic dividends and the credit method for cross-border dividends provided that the two conditions specified above were met (tax rate and credit for the foreign corporation tax on the dividend income). Also, the Court accepted that it was a matter for the member states to determine the category of taxpayers entitled to benefit from double tax relief mechanisms and to set thresholds based on the shareholdings that taxpayers have in the companies making the distributions. Accordingly, the Court held that article 63 of the TFEU did not preclude the Austrian rules at issue provided that the double tax relief mechanisms led to equivalent results. Salinen: Question 1 The first Salinen issue concerned whether article 63 of the TFEU precluded Austrian rules that provided for the credit method to be applied to dividends received from a company established in another member state or in a nonmember state, whereas dividends received from Austrian resident companies were always exempt from tax, but regarding the tax years in which the company receiving the dividends has recorded an operating loss, the rules did not provide for the carryforward of the credit to the following tax years. Equivalent Treatment The ECJ noted that article 63 of the TFEU required the member state that has a system for relieving economic double taxation regarding dividends paid to resident companies by other resident companies to grant equivalent treatment to foreign-source dividends paid to resident companies. However, under the Austrian credit regime, dividends distributed by nonresident companies were included in the tax base of the company receiving them, thereby reducing, when a loss was recorded for the tax year in question, the amount of that loss by the amount of the dividends received. The amount of the loss that could be carried forward to subsequent years was also reduced to the same extent. By contrast, dividends received from resident companies, which were exempt, did not affect the tax base of the company receiving them or, therefore, any losses that it might be able to carry forward. Risk of Economic Double Taxation The ECJ explained that the reduction of the losses of the company receiving the dividends was liable to result for that company, if the credit for the tax paid by the distributing company was not carried forward, in economic double taxation on the dividends in subsequent tax years when its results were positive. By contrast, the Court noted that there was no risk of economic double taxation for domestic dividends because the exemption method was applied to them. The Court recognized that in situations when the credit was not carried forward, foreign-source dividends suffered higher taxation than that resulting from the application of the exemption method for domestic dividends. Therefore, article 63 of the TFEU precluded the legislation. Carrying Forward the Credit The ECJ rejected the argument that a member state could limit the credit to the amount of the foreign corporation tax on the dividend income in these circumstances, pointing out that the Austrian rules did not prevent economic double taxation regarding foreignsource dividends in situations when the credit could not be carried forward. The Court explained that since foreign-source dividends and domestic dividends were comparable (because in each case the profits made were liable to be subject to a series of charges to tax), a difference in treatment between domestic and foreign-source dividends could not be justified by a difference in situation based on the place where the capital was invested. Artificial Arrangements The ECJ also rejected the argument that the difference in treatment could be justified by the need to prevent the setting up of artificial arrangements within a group of companies to which the company receiving the dividends and the company distributing the dividends belong in order to alter the source of the dividends with the sole purpose of obtaining tax advantages. The Court said that the Austrian rules did not specifically target wholly artificial arrangements that did not reflect economic reality and whose only purpose would be to obtain a tax advantage. The Court also pointed out that the existence of wholly artificial arrangements was ruled out in this case because Salinen received dividends from holdings that constituted less than 10 percent of the capital of the company making the distribution and were held collectively with other investors through a domestic investment fund. Salinen: Question 2 The second question asked whether article 63 of the TFEU obliged a member state to take into account when applying the credit method to foreign-source dividends not only the corporation tax paid in the state where the company distributing the dividends was established but also the tax withheld at source in that state. The ECJ decided that a withholding tax on dividends in the state of source created the possibility of juridical double taxation unless a credit was granted in the state of the recipient. However, the Court pointed out that such disadvantages that arise from the parallel exercise of powers of taxation by different member states, insofar as such an exercise was not discriminatory, did not constitute restrictions prohibited by EU law. The residence member state was not obliged under EU law to prevent such disadvantages. The Court made the same finding of juridical double taxation resulting from the parallel exercise by a member state and a nonmember state of their respective powers of taxation. 930 MARCH 21, 2011 TAX NOTES INTERNATIONAL

Analysis The ECJ s judgment in Haribo and Salinen is very much based on its earlier judgment in FII GLO (C-446/ 04) concerning inbound dividends received by U.K. resident companies, including portfolio dividends, and U.K. tax rules that operated an exemption system for domestic dividends and a credit method for crossborder dividends. Many of the issues raised in that case were raised again in Haribo and were answered in a similar way by the ECJ. Similarly, regarding nonmember state portfolio dividends, much of the Court s reasoning in Haribo can be traced to A (C-101/05) and the more recent Établissements Rimbaud (C-72/09), in which the Court stressed that the absence of a mutual assistance agreement with the nonmember state might make it legitimate for a member state to refuse to grant certain tax advantages if it proved impossible to obtain the necessary information (or verification of information) from that nonmember state. The EEA issues involving portfolio dividends have also been covered by the Court in cases like Commission v. Italy (C-540/07), in which the Court recognized that EU case law concerning restrictions on the fundamental freedoms cannot be transposed in its entirety to movements of capital between Member States and non-member States, since such movements take place in a different legal context. 1 Rather than going over these issues, the analysis below concentrates on some of the novel issues arising from the judgment. The Correct Comparator The first question raised the issue of the correct comparator to be used when comparing the tax treatment of portfolio dividends received from companies in EEA states and dividends received from international holdings (at least 10 percent held for at least one year). Under the Austrian rules at issue, there was a more favorable tax treatment of international holdings because these were granted an exemption whereas the EEA dividends were exempt only if a comprehensive mutual assistance agreement was in place that also provided for recovery of taxes. The ECJ pointed out that the correct comparator in such a case was the tax treatment of portfolio dividends received from resident companies, on the one hand, and the tax treatment of portfolio dividends received from EEA companies, on the other hand. It stressed that the comparator was not between the different treatment of income from one non-member State compared to income from another non-member State. 2 This is a welcome clarification of the migrant/nonmigrant test and, hopefully, brings to an end much of the academic debate and criticism of the Court s judgments relating to the correct comparator. FEATURED PERSPECTIVES Relief for Foreign Withholding Taxes The ECJ determined that it was a matter for each member state to organize its system for taxing dividends, and observed that juridical double taxation was likely to arise when two member states choose to exercise their fiscal competence and to subject those dividends to taxation in the hands of the shareholder. 3 Such two-state disparities did not constitute restrictions prohibited by the TFEU. This is a welcome clarification of the migrant/nonmigrant test. The Court explained that the residence member state was not obliged under EU law to grant a credit in such circumstances to eliminate the juridical double taxation. Note that the imputation method operated by Austria to avoid economic double taxation of dividends provided that the corporation tax on the profits underlying the dividends be credited against the corporation tax payable in Austria by the company receiving the dividends. In other words, Austria was willing to eliminate the underlying tax on the dividend but not the withholding tax on the same dividend. This type of credit method differs, therefore, from the one seen in FII GLO, in which the U.K. granted a credit for the withholding tax on the dividends (and the underlying tax when the shareholding was 10 percent or more in the distributing company). 4 Comparing the tax treatment of the domestic and the cross-border situations, Austria eliminated the economic double taxation by exempting the dividends from corporation tax in Austria when they were distributed by an Austrian resident company and applied a credit method when they were distributed by a nonresident company to an Austrian resident company (which credited the foreign corporation tax against the corporation tax payable in Austria on that dividend income). Because competence in direct tax matters remains with the member states subject to their obligation to comply with EU law, it is clear that Austria could determine the amount of double tax relief it was prepared to provide. In this instance, it was prepared to relieve the underlying corporation tax on the foreign portfolio dividends by granting a credit against Austrian tax on the income, but it was not prepared to relieve the withholding tax on the dividends. Accordingly, in the absence of an EU law remedy against the source member state, such as that seen in Denkavit Internationaal (C-170/05), Austria was not in breach of article 63 of the TFEU. 1 Haribo, para. 65, and Commission v. Italy (EEA dividends), para. 69. 2 Haribo, para. 48. 3 Id., para. 168. 4 See, e.g., FII GLO, para. 33. TAX NOTES INTERNATIONAL MARCH 21, 2011 931

FEATURED PERSPECTIVES The Lack of Reciprocity Justification Austria, and a number of intervening member states, argued that if article 63 of the TFEU obliged EU member states to treat dividends received from nonmember states in the same way as dividends received from EU member states, the Member States freedom of action for negotiating tax conventions and thereby ensuring themselves a balanced allocation of the power to tax in their relationships with nonmember States would in practice become nonexistent. 5 The ECJ rejected this justification, pointing out that when the free movement of capital was extended in article 56(1) of the EC Treaty (now article 63(1) of the TFEU) to movements of capital between nonmember states and member states, the latter chose to enshrine that principle in the same article and in the same terms for movements of capital taking place within the European Union and those relating to relations with nonmember States. 6 Thus, while the concept of restriction on the free movement of capital is the same for intra-eu capital movements and capital movements involving nonmember states, it is at the justification level that matters can be different when a nonmember state is involved in the capital movements. Effectiveness of Fiscal Jurisdiction The ECJ has made it clear that the framework established by Directive 77/799 did not exist between the competent authorities of the member states and the competent authorities of a nonmember state when that state has not entered into a mutual assistance agreement. In those circumstances, it might be possible to successfully argue that the effectiveness of fiscal supervision might be jeopardized because an effective exchange of information or administrative assistance was not available with the nonmember state. However, the Haribo decision demonstrates that this justification is not automatically available just because a nonmember state is involved and no exchange of information or mutual assistance agreement is in place with that state. For instance, in paragraph 132 of the Haribo judgment, the ECJ pointed out that the Austrian legislation did not provide that an exemption of portfolio dividends received from a company established in a nonmember state (other than an EEA state), or a credit for the tax paid in such a nonmember state, was conditional upon the existence of an agreement for mutual assistance between the Member State and the relevant non-member State. 7 Accordingly, since portfolio dividends from nonmember states (other than EEA states) were always subject to corporation tax in Austria and the Austrian rules did not provide for any tax advantage to relieve such dividends from economic double taxation, the Court held that in those circumstances, the difference which exists, as regards cooperation between tax authorities...cannot justify a different tax treatment of nationally-sourced portfolio dividends and portfolio dividends from non-member States other than States party to the EEA Agreement. 8 Moreover, regarding dividends from EEA states, the Court pointed out that the Austrian rules, which provided for an exemption of portfolio dividends distributed by companies established in those EEA states and received by companies resident in Austria only if an agreement for mutual assistance existed with that state not only at the administrative level but also regarding recovery of taxes (enforcement), were in breach of the principle of proportionality. The Court explained that: only the existence of an agreement for mutual assistance with regard to administrative matters can be regarded as necessary for the purpose of enabling the Member State concerned to establish the actual level of taxation of the non-resident company distributing the dividends. The national rule at issue concerns the taxation in Austria, by way of corporation tax, of income that resident companies receive in Austria. 9 The Court pointed out that the recovery of such taxes cannot require the assistance of a non-member State s tax authorities. Accordingly, these Austrian tax rules could not be justified. Excessive Administrative Burdens The ECJ s comments on excessive administrative burdens should not go unremarked upon. Haribo complained that there was an excessive administrative burden imposed on it when it received portfolio dividends from outside the EU via an investment fund. In those circumstances, Haribo argued, proof of the corporation tax paid abroad on the dividend income was extremely difficult. The Court noted that: the tax authorities of a Member State are entitled to require the taxpayer to provide such proof as they may consider necessary in order to determine whether the conditions for a tax advantage provided for in the legislation at issue have been met and, consequently, whether to grant that advantage. 10 The Court added that an excessive administrative burden might cause problems when this made it impossible for Austrian resident companies receiving portfolio dividends from other member states and EEA states 5 Haribo, para. 118. 6 Id., para. 127. 7 Id., para. 132. 8 Id., para. 133. 9 Id., para. 73. 10 Id., para. 95. 932 MARCH 21, 2011 TAX NOTES INTERNATIONAL

to benefit from the credit mechanism. In those circumstances, economic double taxation on the dividends would not be prevented or even mitigated. Therefore, if an exemption method operated domestically, the credit method operating cross-border would not deliver equivalent results. 11 However, it rejected Haribo s arguments because the additional administrative burdens in this instance were an intrinsic part of the very operation of the imputation method and cannot be regarded as excessive. 12 The Court pointed out that the information was known to the company distributing the dividend. Therefore, any difficulty that the recipient company has in providing the information on the foreign corporation tax is connected not to the inherent complexity of the information but to the possible lack of cooperation on the part of the company that has the information. 13 Applicability of Directive 77/799 The ECJ s comments on the applicability of Directive 77/799 are also significant. The Court made it clear that just because Directive 77/799 was applicable to portfolio dividends received from other EU member states that did not mean that the company receiving the dividends did not have to provide proof of the tax paid in another member state. Moreover, the Court pointed out that while Directive 77/799 provides for the possibility for national tax authorities to request information which they cannot obtain themselves, that does not impose an obligation to request the information. 14 The Court said it was a matter for each member state to decide whether to submit such a request for information. This reasoning also applied to 11 Id., para. 96. 12 Id., para. 97. 13 Id., para. 98. 14 Id., para. 101. EEA situations when a treaty for mutual assistance applied instead of Directive 77/799. Operating Losses and the Credit Method Finally, Salinen raised the novel question whether Austria was obliged, when applying the credit method to cross-border portfolio dividends and the exemption method to domestic dividends, to provide for the carrying forward of the credit to future tax years in a situation when the recipient company recorded an operating loss for the tax year in question. The ECJ explained that in those circumstances, the reduction of the losses of the company receiving the dividends was liable to result in economic double taxation, if the credit for the tax paid by the company making the distribution was not carried forward. In those instances, foreignsourced dividends suffer...higher taxation than that resulting from application of the exemption method for nationally-sourced dividends 15 and the Austrian rules, when the credit was not carried forward, failed to prevent economic double taxation of the foreign-source dividends. 16 The Court noted that such a difference in treatment: between nationally-sourced dividends...and foreign-sourced dividends...cannot be justified by a difference in situation connected with the place where the capital is invested. In other words, regarding an Austrian rule designed to prevent or mitigate the double taxation of distributed profits, foreign-source dividends and domesticsource dividends are in a comparable situation insofar as the profits made are liable to be subject to a series of charges to tax. 17 15 Id., para. 159. 16 Id., para. 163. 17 Id., para. 164. FEATURED PERSPECTIVES TAX NOTES INTERNATIONAL MARCH 21, 2011 933