# C_2006237EN.01000202.xml

| 30.9.2006 | EN | Official Journal of the European Union | C 237/2 |
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30.9.2006

EN

Official Journal of the European Union

C 237/2

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 29 June 2006 — Finanzamt Hamburg-Am Tierpark v Burda Verlagsbeteiligungen GmbH

(Case C-284/06)

(2006/C 237/04)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt Hamburg-Am Tierpark

Appellant:

Respondent: Burda Verlagsbeteiligungen GmbH

Respondent:

Questions referred

| 1. | Is there withholding tax within the meaning of Article 5(1) of Council Directive 90/435/EEC (1) 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, ..., now Article 5 as amended by Directive 2003/123/EC of 22 December 2003, OJ 2004 L 7, p. 41) in the case in which national law provides that, where profits are distributed by a subsidiary to its parent company, income and asset increases of the capital company are taxed which, under national law, would not be taxed if they remained with the subsidiary and were not distributed to the parent company? |
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1.

Is there withholding tax within the meaning of Article 5(1) of Council Directive 90/435/EEC (1) 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, ..., now Article 5 as amended by Directive 2003/123/EC of 22 December 2003, OJ 2004 L 7, p. 41) in the case in which national law provides that, where profits are distributed by a subsidiary to its parent company, income and asset increases of the capital company are taxed which, under national law, would not be taxed if they remained with the subsidiary and were not distributed to the parent company?

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| 2. | Should Question 1 be answered in the negative: is it compatible with Articles 73b and 73d of the EC Treaty (now Articles 56 EC and 58 EC respectively) and with Article 52 of the EC Treaty (now Article 43 EC) for a national rule to provide for divergent set-off arrangements for the distribution of profits by a capital company using portions of its own capital, resulting in consequent tax liability even in cases in which the capital company demonstrates that it has distributed dividends to non-resident shareholders, even though, under national law, such non-resident shareholders, unlike resident shareholders, are not entitled to set off against their own tax the corporation tax thus determined? |
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2.

Should Question 1 be answered in the negative: is it compatible with Articles 73b and 73d of the EC Treaty (now Articles 56 EC and 58 EC respectively) and with Article 52 of the EC Treaty (now Article 43 EC) for a national rule to provide for divergent set-off arrangements for the distribution of profits by a capital company using portions of its own capital, resulting in consequent tax liability even in cases in which the capital company demonstrates that it has distributed dividends to non-resident shareholders, even though, under national law, such non-resident shareholders, unlike resident shareholders, are not entitled to set off against their own tax the corporation tax thus determined?

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(1)  OJ L 225, p. 6.

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