Instance Hoge Raad

Date of judgment 09-07-2021

Date of publication 09-07-2021

Case number 19/05112

Formal relationship Conclusion: ECLI:NL:PHR:2020:672

In cassation on : ECLI:NL:GHDHA:2019:2830

Ruling

HIGH COUNCIL OF THE NETHERLANDS

TAX CHAMBER

Number 19/05112

Date 9 July 2021

JUDGMENT

in the case of

the state secretary for finance

v

[X] B.V. of [Z] (hereinafter referred to as: the interested party)

on the appeal in cassation against the judgment of the Court of Appeal of The Hague of 2 October 2019, nos. BK-17/00943 to BK-17/00945, on the appeal of the Inspector against the judgment of the District Court of The Hague (nos. SGR 16/4632 to SGR 16/4634) concerning the (additional) corporation tax assessments imposed on the interested party for the years 2006 and 2010, the decision made with regard to the interested party for the year 2009, as referred to in Article 20b(3) of the Corporation Tax Act 1969, the decision made for the year 2010, as referred to in Article 20b(1) of that Act, and the decisions regarding levy interest made in connection therewith for the years 2006 and 2010. The judgment of the Court of Appeal is attached to this judgment.

1 Judgment in Cassation

The State Secretary, represented by [P], has appealed against the judgment of the Court of Appeal.

The interested party, represented by J.H. Asbreuk and M.H.J. Buur, submitted a defence. It also lodged a conditional incidental appeal in cassation.

The notice of appeal in cassation and the document instituting the conditional incidental appeal in cassation have been attached to this judgment and form an integral part thereof.

The State Secretary expressed his views on the conditional cross-appeal in writing. He also submitted a reply to the main appeal.

The interested party submitted a rejoinder to the main appeal. It also responded to the State Secretary's conditional alternative defences.

The State Secretary submitted a reply by rejoinder in the conditional incidental appeal.

On 3 July 2020 Advocate General P.J. Wattel concluded that the main appeal in cassation should be dismissed and that the conditional incidental appeal in cassation should not be considered.1

Both the State Secretary and the interested party responded to the conclusion in writing.

2 Basic principles in cassation

2.1.1 Interested party, a private limited company established in the Netherlands, is part of a globally operating group (hereafter: the Group). In the years under review, the head office, which was also the top holding company, was located in the United States of America (hereafter: the USA).

2.1.2 Until 1 February 2008, the Interested Party was, together with [BV 1] (hereinafter: BV 1) and [BV 2] B.V. (hereinafter: BV 2), included in a fiscal unity for corporate income tax with the Interested Party as the parent company. As of 1 February 2008, a number of companies were added to the fiscal unity, including [BV 3] B.V. (hereinafter: BV 3) and [BV 4] B.V. (hereinafter: BV 4). The taxpayer is considered transparent for tax purposes according to US standards. Its parent company is a company domiciled in the USA, as further described in 2.1.8 below.

2.1.3 In 2006, BV 1 borrowed € 195,000,000 under a Euro Credit Facility (hereinafter: ECF), a head office guaranteed credit facility with a syndicate of sixteen banks. BV 1 contributed this amount in 2007 as share premium to BV 2. BV 2 paid the larger part of this amount as capital into BV 3. BV 2 and BV 3 have jointly paid the amount of (rounded off) € 195.000.000 into a newly established Irish holding company (hereafter: Ltd 1). Ltd 1 used the capital contribution to purchase a company established in Ireland (hereafter: Ltd 2) from a group company established in the United Kingdom for an amount of (rounded off) GBP 130.000.000.

2.1.4 BV 3 (for 99 per cent) and BV 4 (for 1 per cent) jointly formed a French entity (hereinafter: SNC) on 28 November 2007. SNC is transparent for tax purposes under Dutch standards. For French tax purposes, SNC is a non-transparent group company. BV 3 sold its subsidiary [SA 1] (hereinafter: SA 1) on 6 December 2007 to SNC for €550,000,000, with SNC acknowledging the purchase price. On 12 December 2007, that claim against SNC was converted into capital. SA 1 merged with SNC on 15 January 2008, with SNC as the surviving legal entity. SNC acquired through the merger, inter alia, a bank debt of €45,000,000 to the Group cash pool managed by BV 2 with a bank (the Pool). This debt is the remainder of a loan taken out by SA 1 in 1998 for external acquisitions and which was refinanced from the Pool in 2004.

2.1.5 BV 3 borrowed € 65,000,000 under the ECF on 6 February 2008 and on-lent this amount to SNC. SNC borrowed on the same day a total of € 240,000,000 under the ECF of which one loan of € 195,000,000 and one loan of € 45,000,000. SNC repaid the bank debt from the Pool with the loan of € 45,000,000. On 7 February 2008 it purchased Ltd 1, [F] NV and [G] from BV 3 for rounded € 255,000,000, financed by € 195,000,000 in ECF loans and the aforementioned loan from BV 3 of € 65,000,000, and further purchased an additional participation for rounded € 5,000,000. With the received € 255,000,000, BV 3 repaid its ECF debt of € 60,000,000. On 7 February 2008 it lent the remaining € 195,000,000 to BV 1, which repaid its ECF debt in February 2008. BV 2 sold the shares in a Moroccan and a Tunisian entity to SNC on 7 February 2008 against payment of € 5,088,000.

2.1.6 BV 2 borrowed € 191,000,000 under the ECF to finance capital contributions in subsidiaries in Norway, Singapore and Switzerland, for external and internal purchase of shares in companies and for the expansion on 10 December 2008 with 8.71 percent (€ 12,115,000) of its 86.96 percent interest in [M] SpA indirectly held through a transparent Spanish SC of the English group companies [LTD 4] and [LTD 5] .

2.1.7 On 29 May 2009, [E] SA (hereinafter: Luxco) borrowed an amount of € 291,000,000 under the ECF. Luxco is a Luxembourg-based finance company that belongs to the Concern. Luxco on-lent that amount to BV 3 under the same conditions. In turn, BV 3 on-lent the same amount under the same conditions to SNC. With that loan, SNC repaid its ECF debt of € 240,000,000. It lent the remainder to its subsidiary [SA 2] ('SA 2') in connection with the acquisition by SA 2 of [SA 3] ('SA 3'). That acquisition took place on 25 May 2009 against acknowledgment of debt. SA2 repaid part of the loan from SNC with funds obtained from SA3. The remainder of the loan was converted into capital.

2.1.8 On 24 June 2009, Luxco placed a public bond loan of € 500,000,000. Luxco used the net proceeds to provide a US dollar loan of € 482,000,000 to its US sister company [US] Inc (hereinafter: US Inc). US Inc is the parent company of the interested party. The currency risk has been hedged by Luxco with an external hedge. US Inc converted the funds from the Luxco loan into euros and subsequently granted a loan of € 482,000,000 to interested party on 1 July 2009. Interested party paid this amount into new shares in its indirect and affiliated subsidiary [BV 5] (hereinafter: BV 5), as a result of which interested party obtained a direct interest of 99.996 percent in BV 5. From the paid-up funds, BV 5 provided two loans within the fiscal unity: a loan of € 191,000,000 to BV 2 and a loan of € 291,000,000 to BV 3. BV 2 and BV 3 used the funds obtained from these loans to pay off the ECF debt and the debt to Luxco, respectively. Luxco repaid its ECF debt on 1 July 2009.

2.1.9 On 13 and 14 December 2010, BV 2 and BV 3 took out loans under the ECF amounting to € 197,000,000 and € 300,000,000 respectively. These amounts were equal to the principal and outstanding interest of their debts to BV 5. With the proceeds of these loans, BV 2 and BV 3 repaid their debts to BV 5. BV 5 distributed the net interest income as dividend and repaid € 482,000,000 of capital to interested party. Interested party repaid its debt to US Inc on 14 December 2010 (including outstanding interest). US Inc repaid its debt to Luxco on 14 December 2010. Luxco settled the hedge on 14 December 2010 and provided a loan of € 191,000,000 to BV 2 and a loan of € 291,000,000 to BV 3. BV 2 and BV 3 have herewith repaid the principal amount of their ECF debt. In addition, BV 2 and BV 3 borrowed money from the Pool to pay the interest on their ECF debts.

2.2.1 The issue before the Court was whether, when calculating the taxable profit of the interested party, as parent company of the fiscal unity, a deduction could be made from the interest payable in respect of (i) the loan of € 482. 000,000 (period 1 July 2009 until 14 December 2010) and (ii) the loans of EUR 191,000,000 and EUR 291,000,000 (period as of 14 December 2010) granted by Luxco to BV 2 and BV 3, as referred to in 2.1.9 above (hereinafter jointly: the group loans). More in particular - as far as relevant in cassation - was in dispute (a) whether the interest charges were at arm's length, (b) whether application of the doctrine of fraus legis prevented the deduction, (c) whether the interest deduction should be allowed on the basis of EU law, and (d) whether Article 10a of the Corporation Tax Act 1969 (text for the years 2009 and 2010; hereinafter: the Act) prevented the deduction of the interest charges.

2.2.2 The Court of Appeal ruled that the interest charges referred to in 2.2.1 above are to be charged to the profit of the interested party.

3 Assessment of the pleas in law put forward in the main action

Plea I: Interest charges at arm's length

3.1 The Court of Justice has ruled that the interest charges referred to in 2.2.1 are financing charges that are in principle deductible. To this end, the Court considered that an action by the interested party in the interest of the Group must be seen as an action aimed at the business interests of its own company as part of the Group as a whole. Such an act cannot be equated with satisfying the personal needs of the shareholder as referred to in the judgment of the Supreme Court of 14 June 2002, ECLI:NL:HR:2002:AB2865, according to the Court of Appeal.

3.2 Ground I is directed against these judgments of the Court of Appeal. The ground of appeal argues that the Court of Appeal should have considered the interest charges to be unfounded and complains in that respect in two parts about a violation of Article 8 and Article 8b of the Act. The first part of the plea submits that the Court of Justice gave too broad an interpretation to the concept of a group of companies and did not examine which group interest would have been served by the diversion of the refinancing. The second part of the plea submits that, in order to apply the 'at arm's length' principle of section 8b of the Act, it must be assessed whether the group company in question has and serves its own business interest.

3.3.1 The refinancing referred to by means I concerns the fact that the previously by BV 2 and BV 3 under the ECF, not yet repaid amounts (see above in 2.1.6 and 2.1.7) of, in total, € 482,000,000, have been refinanced with the public bond loan taken out by Luxco on 24 June 2009. This refinancing by Luxco initially, as of 1 July 2009, took place indirectly via US Inc and interested party (and BV 5), and as of 14 December 2010 directly.

3.3.2 The system of the Act stipulates that the taxpayer has freedom of choice in the form of financing of a company in which he participates.2 The same freedom applies to the organisation of a group of companies, i.e. no provision of the Act or principle underlying it lays down norms as to where within the group activities are placed and where holding and intermediary activities or financing activities are carried out. Taken together, this means that, in principle, the financing of activities and of the acquisition and holding of participations by means of loans constitutes a business of a company belonging to a group. Accordingly, the interest payable on the loans in question is a business expense, even if it is payable to a company belonging to the group. In that regard, contrary to what is argued in the plea, the concept of a group is not limited to companies in which the taxpayer has a direct or indirect shareholding.

3.3.3 In view of the considerations set out above in paragraphs 3.3.1 and 3.3.2, the Court of Appeal could rule, without committing an error of law, that the actions of the interested party referred to in paragraph 3.1 cannot be equated with satisfying the personal needs of the shareholder. The circumstance put forward by the plea that the method of financing of the interested party was dictated by the Group's interest in paying as little tax as possible worldwide does not alter this. In this connection, the plea in law also relies on the judgment of the Supreme Court of 26 April 1989, ECLI:NL:HR:1989:ZC4024, but this reliance is in vain. It ignores the fact that that judgment also related to a case in which the interest that had become payable was a business expense, albeit that such interest was not allowed as a deduction under the special plea of proper taxation.

3.3.4 In view of the above, the plea fails insofar as it complains about the rejection by the Court of Appeal of the Inspector's view that the interest charges are not deductible pursuant to Article 8 of the Act because they are to be considered as unrealistic financing costs that have been incurred as a result of unrealistic legal transactions.

3.3.5 Plea I also fails on other grounds. The plea does not allege that the conditions of the group loans were not determined in accordance with the 'at arm's length' principle, nor did the Court of Justice find this to be the case. For the purposes of Section 8b of the Act, the extent to which the group company has its own business interest in the relevant legal relationship is irrelevant. Section 8b of the Act has an objective character. The intentions of the parties involved in the relationship in question play no role.

Remedy IV: Article 10a of the Act

3.4. The Court of Appeal has ruled that Article 10a of the Act does not preclude the deduction of the interest owed by the party concerned on the group loans. It assumed that the group loans are linked in their entirety to legal acts as referred to in Article 10a of the Act. According to the Court of Appeal, the interested party has made it plausible, in spite of the reasoned objection by the Inspector, that the interest owed on the group loans was materially owed to third parties, so that the rules for rebuttal in Article 10a(3) opening words and (a) of the Act have been met.

The conditions of the group loans are, except for some minor points, equal to the conditions of the external bond loan issued by Luxco on 24 June 2009, so that there is a sufficient parallelism between the group loans and the external financing thereof, according to the Court, which has taken into account that the conditions only marginally differ with regard to interest rates and the broader possibility of early repayment (which has not been used). It did not consider relevant the differences in currency between the internal loan and the external loan.

The same applies to the fact that the interested party is considered a transparent entity for US tax purposes.

The fact that the interested party itself stated that it wished to use the US dollar cash flows to pay interest on the external loan and the European euro cash flows for investments and other payments within the euro zone, did not affect the assessment that the funds lent internally were ultimately borrowed externally.

In the opinion of the Court, the mere substitution of one internal loan for another does not destroy the link with the external bond either.

3.5 Plea IV is directed, inter alia, against these judgements and in this respect it is divided into two parts.

Subsection b complains about the Court's ruling that the interested party has made it plausible that the interest on the group loans was materially owed to third parties, so that the rules for rebuttal in Article 10a(3) opening words and (a) of the Act have been met. The plea in law is that

- That the parallelism between the group loans and their external financing must be assessed under both civil and tax law, and that in view of the aim and purpose of Section 10a of the Act, all links must be included in the assessment,

- that the Court of Justice failed to have regard to the fact that the interested party itself stated that, by diverting the funds via US Inc, it was ensured that USD cash flows could be used to pay the interest and EUR cash flows could be used for destinations within the euro zone, with the result that the interested party itself ensured that there was no longer any connection between the external bond loan and the internal loan to the interested party, and that the parallelism between those loans was thus insufficient; and

- that parallelism can only be an issue if the interested party has demonstrated that it has a real need for financing.

Subsection c complains about the Court of Appeal's opinion that the mere replacement of one internal loan by another internal loan does not destroy the link with the external bond loan.

These parts of the plea lend themselves to joint handling.

3.6.1 Under Article 10a(1) of the Act, when determining the profit, interest in respect of debts owed to an affiliated entity will not be deducted insofar as those debts relate to legal acts specified in letters a to c of that paragraph.

If a debt falls within the scope of Article 10a(1) of the Act, the interest relating to that debt will, in principle, not be deductible when determining the profit. However, deduction is possible if the taxpayer successfully invokes one of the rebuttal provisions of Article 10a(3) of the Act.

3.6.2 Pursuant to Article 10a(3)(a) of the Act, the first paragraph does not apply if the taxpayer demonstrates that the debt and the related legal act are predominantly based on business considerations.

3.6.3 With regard to the investigation into the motives for the legal act in question and the loan, only the considerations underlying that legal act and that loan are relevant. In that examination, the following principles must be taken into account.

First of all, as considered above in 3.3.2, the system of the Act stipulates that the taxpayer, in this case a group of companies, has freedom of choice in the way it finances a company in which it participates.

However, the fact that a capital contribution to a related entity is made for commercial purposes does not exclude that the method of financing is based on considerations that are not predominantly commercial. After the introduction of the double arm's length test in Article 10a(3)(a) of the Law, the fact that a financing structure set up within a group ultimately serves a business purpose does not exclude a loan from a related entity that is part of that financing structure from the scope of the exclusion of interest deduction. In this sense, by not allowing the deduction of interest owed, Article 10a of the Act infringes the freedom of taxpayers to organise their financing structure.

Secondly, the taxpayer, and in this case a group of companies, has the freedom to place its economic interests and (financial) resources in a company established in the Netherlands, even if that choice is determined by circumstances relating to taxation. Unlike the aforementioned infringement on the freedom of the taxpayer to choose his financing structure, it is not clear from the parliamentary debate on Article 10a of the Act that the introduction of that provision was intended to restrict this second freedom. Therefore, it must be assumed that the fact that the Dutch company was engaged by the group for tax reasons is not relevant for the assessment of the reasons for the relevant legal act and the loan within the framework of Article 10a(3)(a) of the Law.3

To the extent that Article 10a(1) of the Act, read in conjunction with paragraph 3 opening words and (a) of that Article, violates this system by not allowing the deduction of interest owed, this regulation must, also in view of the history of its establishment and the examples used therein, be interpreted restrictively.4

3.6.4 It must be assumed that the legislator did not intend the interest deduction limitation of paragraph 1 to apply to interest relating to a debt that was actually concluded with a third party. If the taxpayer states the facts, and in the event that these are disputed, demonstrates that these facts justify the conclusion that a debt owed by law to an affiliated entity is in fact owed to a third party, then this taxpayer has met the rebuttal provision of Article 10a(3) opening words and (a) of the Act. This applies to both the debt and the related legal act, as referred to in that provision. As with the application of the first and third paragraph, opening words and (b) of Article 10a of the Act, in assessing whether such a case exists, the duration, repayment schedule, interest rate, amount and time of contracting of the loans must in any case be considered. It is important to assess these circumstances in relation to each other.5

3.6.5 With its judgement that there is sufficient parallelism between the group loans and the external financing thereof, as a result of which the rules for rebuttal of Article 10a(3) opening words and (a) of the Act have been met, the Court of Appeal has not ignored what has been said above in

3.6.3 and 3.6.4 above.

3.6.6 Counterclaim IV argues that the parallelism between the group loans and the external financing thereof should be assessed under both civil and tax law, and that in view of the objective and purport of Article 10a of the Act, all links should be included in the assessment. The view, defended by the plea in law in that regard, that the manner in which those loans are interpreted in other jurisdictions must also be taken into account in that assessment has no basis in law. The assessment which must take place in the context of the application of Article 10a of the Law must take place according to Netherlands criteria. The fact that a loan involves a hybrid entity, i.e. an entity which is treated for tax purposes as a transparent entity in one country and as a non-transparent entity in another, does not preclude the existence of a parallel between a group loan and its external financing.

3.6.7 The Court was also able to conclude, without any error of law, that the conclusion that the funds lent internally were ultimately borrowed externally is not affected by the fact that the interested party intended to use the US dollar cash flows to pay interest on the external loan and the European euro cash flows for investments and other payments within the euro zone. Such use does not break the link between the internal loan to the interested party and the external bond, nor does it preclude a parallelism between those two loans.

3.6.8 The freedom of a group of companies to organise itself in the manner it prefers, as referred to in 3.3.2 above, means that in a case in which a group company established in the Netherlands chooses to have it hold the shares in other group companies, the need for financing by the company established in the Netherlands is created by that alone. That borrowing requirement must therefore be taken as the starting point for the application of Article 10a of the Law, which specifically includes loans taken out to acquire shares within the group. There is no reason to test the reality of that need, as argued by the plea, apart from the fact that it is not possible to say by which factors that reality should be determined.

3.6.9 The opinion of the Court of Appeal that the mere replacement of one internal loan by another internal loan does not cause the connection with the external bond loan to be lost either, does not show an incorrect interpretation of law and, as it is interwoven with assessments of a factual nature, cannot be examined on its correctness by the Supreme Court in cassation proceedings. It is also not incomprehensible or insufficiently reasoned.

3.6.10 In view of the considerations set out above in 3.6.5 to 3.6.9, parts b and c of ground IV fail. This means that ground a of ground IV does not need to be addressed, because the judgment of the Court of Appeal that Article 10a of the Act does not preclude the deduction of the interest owed by the interested party on the group loans is independently supported by the grounds against which grounds b and c were vainly contested.

Appeal II: fraus legis

3.7 Plea II complains about the opinion of the Court of Appeal that the so-called Bosal-gap for the diversion of the borrowed funds through Dutch companies constitutes a sufficient explanation for the advantage enjoyed by the interested party as a result of the interest deduction. In the opinion of the Court of Appeal, this does not therefore constitute an erosion of the corporate income tax base, so that the Inspector's appeal to fraus legis was rejected.

3.8.1 In its consideration of the plea, the Supreme Court put the following first.

The Court of Justice has ruled in the judgment of 18 September 2003, ECLI:EU:C:2003:479 (hereinafter: the Bosal judgment), ruled that Directive 90/435/EEC6 , interpreted in the light of Article 52 of the EC Treaty (and then, after amendment, Article 43 EC), precludes a national provision which, for the purposes of taxing the profits of a parent company established in one Member State, makes the deduction of costs in connection with that company's holding in the capital of a subsidiary established in another Member State subject to the condition that such costs serve indirectly to make profits which are taxable in the Member State in which the parent company is established.

This decision of the Court of Justice created the situation for the levy of Dutch corporation tax that an entity subject to tax which holds a shareholding in a company established within the European Union is exempt from the benefits derived therefrom by virtue of the participation exemption provided for in Article 13 of the Law, but that - contrary to what was stipulated in the Act at the time - the interest owed by that entity in respect of loans taken out to acquire the shares in that company established within the Union and/or to provide capital to such a company by means of (informal) capital contributions cannot be excluded from its profits for that reason alone. In this way, the system of the Act created an asymmetric treatment of, on the one hand, income and, on the other hand, the expenses related to this income, also referred to as the Bosal Gap. In a case where the entity also enjoys other - non-exempt - benefits, the interest resulting from this will be deducted from these other benefits when calculating the taxable profit of that entity, thus reducing the burden of the corporate tax on these benefits.7

3.8.2 However, the tax relief resulting from the Bosal gap is not unlimited. It cannot be accepted if and insofar as, with the overriding objective of tax avoidance, interest deductions are created which are contrary to the system of the Law, as that system must be understood after the Bosal ruling.8

3.8.3 The present case is characterised by the fact that funds were borrowed externally and those funds were used for capital contributions and loans to group companies for, inter alia, internal and external acquisitions. The deduction of the interest owed in respect of those loans does not result in those interest charges being set off against purchased profits or otherwise artificially created advantages. The predominant explanation for the tax advantage gained by the party concerned as a result of the interest deduction is the use of the Bosal Gap, which at the time was part of the system governed by the Law. Under these circumstances, allowing the interest referred to in 2.2.1 above to be deducted does not conflict with the object and purpose of the Act. The opinion of the Court of Appeal that in this case there is no erosion of the corporate tax base is therefore not based on an incorrect interpretation of the law. Plea II also fails.

Plea III: Freedom of establishment under Union law

3.9 Plea III is directed against the Court's judgment that the interested party could successfully invoke the freedom of establishment guaranteed by EU law. Since it follows from the foregoing that Dutch national law permits deduction of the interest owed by the interested party on the group loans, the question of whether application of that national law is contrary to the freedom of establishment guaranteed by European Union law does not arise. Plea III therefore also fails.

4 The conditional cross-appeal

Since the main action does not lead to the annulment of the judgment of the Court, the condition under which the cross-appeal was lodged has not been met. In view of Section 8:112(2) of the Awb, the cross-appeal therefore lapses.

5 Legal costs

As regards the principal appeal in cassation lodged by the State Secretary, the State Secretary will be ordered to pay the costs of the proceedings in cassation.

As regards the incidental appeal in cassation lodged by the interested party, the Supreme Court does not deem there to be any grounds for an order to pay the costs of the proceedings.

6 Judgment

The Supreme Court

- Dismisses the appeal in cassation of the State Secretary for Finance as unfounded; and

- orders the State Secretary of Finance to pay the costs of the interested party for the proceedings in cassation, fixed at € 5,049 for professional legal assistance.

This judgment has been rendered by the Vice-President M.E. van Hilten, chairman, and the counsel E.N. Punt, J.A.C.A. Overgaauw, P.M.F. van Loon and E.F. Faase, in the presence of the acting registrar E. Cichowski, and has been pronounced in public on 9 July 2021.

A court fee of € 519 will be charged to the State Secretary of Finance.

1ECLI:NL:PHR:2020:672.

2See HR 5 June 2015, ECLI:NL:HR:2015:1460, paragraph 3.1.3.

3Cf. HR 8 July 2016, ECLI:NL:HR:2016:1350, section 2.6.3.

4See HR 21 April 2017, ECLI:NL:HR:2017:640, section 2.4.5.2.

5Cf. HR 21 April 2017, ECLI:NL:HR:2017:640, paragraph 2.4.5.3.

6Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States.

7Cf. HR 21 April 2017, ECLI:NL:HR:2017:638, paragraph 3.2.3.4.

8See HR 21 April 2017, ECLI:NL:HR:2017:638, paragraph 3.2.3.5.