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.