Request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuania) lodged on 26 March 2024 – ‘Nordcurrent group’ UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
(Case C-228/24, Nordcurrent group)
Language of the case: Lithuanian
Referring court
Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės
Parties to the main proceedings
Applicant: ‘Nordcurrent group’ UAB
Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
Questions referred
In circumstances such as those of the present case, is a national practice under which an exemption from taxation on dividends is not granted to a parent company in a Member State in respect of the dividends received from a subsidiary established in another Member State on the ground that such a subsidiary is recognised as an arrangement, where the subsidiary is not an intermediate company and the profits distributed by way of dividends were generated by activities carried out under the subsidiary’s name, so that removing the subsidiary would result in a situation where there are no profits at all or no payment of dividends, consistent with the objectives of the anti-abuse rule in Directive 2011/96? 1
If the answer to the first question is in the affirmative, is a national practice under which, for the purpose of recognising a subsidiary established in another Member State as an arrangement as such, an assessment is made of the circumstances at the time of payment of the dividends, where the establishment of the subsidiary is justified by commercial reasons, consistent with the objectives of the anti-abuse rule in Directive 2011/96?
May the anti-abuse rule in Directive 2011/96 be interpreted as meaning that, where a parent company has received dividends from a subsidiary that is established in another Member State and is recognised as an arrangement, that recognition alone is sufficient for it to be found that the parent company, through the application of the exemption from taxation on dividends, obtained a tax advantage that defeats the object or purpose [of Directive 2011/96]? Furthermore, are the circumstances relating to the fact that the profits earned by a subsidiary that has been recognised as an arrangement were subject to corporation tax in the Member State of establishment in accordance with the national rules in force in that Member State to be regarded as relevant for the purpose of challenging the finding that a tax advantage was obtained or that there was an arrangement?
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1 Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 2011 L 345, p. 8).