# C_2017104EN.01001501.xml

| 3.4.2017 | EN | Official Journal of the European Union | C 104/15 |
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3.4.2017

EN

Official Journal of the European Union

C 104/15

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Judgment of the Court (First Chamber) of 9 February 2017 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X v Staatssecretaris van Financiën

(Case C-283/15) (1)

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((Reference for a preliminary ruling - Tax legislation - Income tax - National of a Member State receiving income in that Member State and in a non-Member State, and residing in another Member State - Tax advantage to take account of his personal and family circumstances))

(2017/C 104/22)

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Applicant: X

Applicant:

Defendant: Staatssecretaris van Financiën

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 49 TFEU must be interpreted as precluding a Member State, the tax legislation of which permits the deduction of ‘negative income’ relating to a dwelling, from refusing the benefit of that deduction to a self-employed non-resident where that person receives, within that Member State, 60 % of his total income and does not receive, within the Member State where his dwelling is located, income that enables him to qualify for an equivalent right to deduct. |
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1.

Article 49 TFEU must be interpreted as precluding a Member State, the tax legislation of which permits the deduction of ‘negative income’ relating to a dwelling, from refusing the benefit of that deduction to a self-employed non-resident where that person receives, within that Member State, 60 % of his total income and does not receive, within the Member State where his dwelling is located, income that enables him to qualify for an equivalent right to deduct.

| 2. | The injunction imposed by the answer to the first question concerns any Member State of activity within which a self-employed person receives income enabling him to claim there an equivalent right of deduction, in proportion to the share of that income received within each Member State of activity. In that regard, a ‘Member State of activity’ is any Member State that has the power to tax such income from the activities of a non-resident as is received within its territory, irrespective of where the activities are actually performed. |
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2.

The injunction imposed by the answer to the first question concerns any Member State of activity within which a self-employed person receives income enabling him to claim there an equivalent right of deduction, in proportion to the share of that income received within each Member State of activity. In that regard, a ‘Member State of activity’ is any Member State that has the power to tax such income from the activities of a non-resident as is received within its territory, irrespective of where the activities are actually performed.

| 3. | The fact that the non-resident taxpayer concerned receives part of his taxable income not within a Member State, but within a non-Member State, is of no relevance to the answer to the second question. |
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3.

The fact that the non-resident taxpayer concerned receives part of his taxable income not within a Member State, but within a non-Member State, is of no relevance to the answer to the second question.

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(1)  OJ C 294, 7.9.2015.

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