# C_2014129EN.01000902.xml

| 28.4.2014 | EN | Official Journal of the European Union | C 129/9 |
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28.4.2014

EN

Official Journal of the European Union

C 129/9

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Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 15 January 2014 — X; Other party: Staatssecretaris van Financiën

(Case C-14/14)

(2014/C 129/12)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant in cassation: X

Other party to the appeal in cassation: Staatssecretaris van Financiën

Questions referred

| 1. | Does the application of Article 63 TFEU require that the comparison of a non-resident with a resident in a case such as the present, in which dividend tax is withheld on a dividend payment by the source State, be extended to the income tax payable on the dividend income, against which, in the case of residents, the dividend tax is set off? |
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1.

Does the application of Article 63 TFEU require that the comparison of a non-resident with a resident in a case such as the present, in which dividend tax is withheld on a dividend payment by the source State, be extended to the income tax payable on the dividend income, against which, in the case of residents, the dividend tax is set off?

| 2. | If the answer to Question 1 is in the affirmative, in the assessment as to whether the effective tax burden for a non-resident is heavier than the tax burden for a resident, should a comparison be made between the Netherlands dividend tax withheld in respect of the non-resident and the Netherlands income tax payable by a resident, calculated in respect of the flat-rate income which, in the year in which the dividends were received, is attributable to the total holding of investment shares in Netherlands companies, or does European Union law require that a different standard of comparison be taken into account? Must the tax-free capital allowance which applies to residents also be taken into account when making that comparison, and, if so, to what extent (see the judgment of the Court of Justice of 17 October 2013 in Case C-181/12 Welte, V-N 2013/51.20.1)? |
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2.

If the answer to Question 1 is in the affirmative, in the assessment as to whether the effective tax burden for a non-resident is heavier than the tax burden for a resident, should a comparison be made between the Netherlands dividend tax withheld in respect of the non-resident and the Netherlands income tax payable by a resident, calculated in respect of the flat-rate income which, in the year in which the dividends were received, is attributable to the total holding of investment shares in Netherlands companies, or does European Union law require that a different standard of comparison be taken into account? Must the tax-free capital allowance which applies to residents also be taken into account when making that comparison, and, if so, to what extent (see the judgment of the Court of Justice of 17 October 2013 in Case C-181/12 Welte, V-N 2013/51.20.1)?

| 3. | If Question 1 is to be answered in the affirmative, is it sufficient, in the assessment as to whether a potentially discriminatory withholding tax levied at source is effectively neutralised on the basis of a convention for the avoidance of double taxation concluded by the source State, that (i) the double taxation convention concerned makes provision for a tax reduction in the State of residence by means of the setting-off of the withholding tax levied at source and that, although that option is not unconditional, (ii) in the case in question the tax reduction granted by the State of residence, by levying tax only on the net dividend received, offsets in full the discriminatory portion of the withholding tax levied at source? |
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3.

If Question 1 is to be answered in the affirmative, is it sufficient, in the assessment as to whether a potentially discriminatory withholding tax levied at source is effectively neutralised on the basis of a convention for the avoidance of double taxation concluded by the source State, that (i) the double taxation convention concerned makes provision for a tax reduction in the State of residence by means of the setting-off of the withholding tax levied at source and that, although that option is not unconditional, (ii) in the case in question the tax reduction granted by the State of residence, by levying tax only on the net dividend received, offsets in full the discriminatory portion of the withholding tax levied at source?

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