Request for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 3 November 2020 – ACC Silicones Ltd. v Bundeszentralamt für Steuern
(Case C-572/20)
Language of the case: German
Referring court
Finanzgericht Köln
Parties to the main proceedings
Applicant: ACC Silicones Ltd.
Defendant: Bundeszentralamt für Steuern
Questions referred
Does Article 63 TFEU (ex Article 56 EC) preclude a national tax provision, such as that at issue in the main proceedings, which, for the purposes of the reimbursement of tax on income from capital, requires a company resident abroad which receives dividends from equity holdings and does not meet the minimum equity holding threshold laid down in Article 3(1)(a) of Directive 90/435 1 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (as amended by Directive 2003/123) 2 to prove, by means of a certificate from the foreign tax administration, not only that neither that company nor a shareholder with a direct or indirect equity holding in that company can offset the tax on income from capital or deduct it as an operating cost or as work-related outgoings, but also that no offset, deduction or carry-forward has actually taken place either, in the case where such proof is not required, for the purposes of the reimbursement of tax on income from capital, from a company with the same level of equity holding which is resident in national territory?
In the event that the answer to the first question is in the negative:
Do the principles of proportionality and effectiveness preclude the requirement of a certificate as referred to in the first question in the case where it is effectively impossible for a company in receipt of dividends from so-called ‘free-float’ shares which is resident abroad to provide such a certificate?
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1 Council 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 (OJ 1990 L 225, p. 6).
2 Council Directive 2003/123/EC of 22 December 2003 amending Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 2004 L 7, p. 41).