# C_2021035EN.01002502.xml

| 1.2.2021 | EN | Official Journal of the European Union | C 35/25 |
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1.2.2021

EN

Official Journal of the European Union

C 35/25

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 October 2020 — Finanzamt B v W AG

(Case C-538/20)

(2021/C 35/38)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant on a point of law: Finanzamt B

Respondent in the appeal on a point of law: W AG

Other Party: Bundesministerium der Finanzen

Questions referred

| 1. | Is Article 43, in conjunction with Article 48, of the Treaty establishing the European Community (now Article 49, in conjunction with Article 54, of the Treaty on the Functioning of the European Union) to be interpreted as precluding legislation of a Member State which prevents a resident company from deducting losses incurred by a permanent establishment in another Member State from its taxable profits where, first, the company has exhausted the possibilities to deduct those losses available under the law of the Member State in which the permanent establishment is situated and, second, it has ceased to receive any income from that establishment, so that there is no longer any possibility of account being taken of the losses in that Member State (‘final’ losses), if the legislation in question concerns an exemption for profits and losses under a bilateral convention for the avoidance of double taxation between the two Member States? |
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1.

Is Article 43, in conjunction with Article 48, of the Treaty establishing the European Community (now Article 49, in conjunction with Article 54, of the Treaty on the Functioning of the European Union) to be interpreted as precluding legislation of a Member State which prevents a resident company from deducting losses incurred by a permanent establishment in another Member State from its taxable profits where, first, the company has exhausted the possibilities to deduct those losses available under the law of the Member State in which the permanent establishment is situated and, second, it has ceased to receive any income from that establishment, so that there is no longer any possibility of account being taken of the losses in that Member State (‘final’ losses), if the legislation in question concerns an exemption for profits and losses under a bilateral convention for the avoidance of double taxation between the two Member States?

| 2. | If the first question is answered in the affirmative:
  Is Article 43, in conjunction with Article 48, of the Treaty establishing the European Community (now Article 49, in conjunction with Article 54, of the Treaty on the Functioning of the European Union) to be interpreted as also precluding the legislation under the German Gewerbesteuergesetz (Law on local business tax) which prevents a resident company from deducting from its taxable business earnings ‘final’ losses of the type referred to in the first question of a permanent establishment in another Member State? |
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2.

If the first question is answered in the affirmative:

Is Article 43, in conjunction with Article 48, of the Treaty establishing the European Community (now Article 49, in conjunction with Article 54, of the Treaty on the Functioning of the European Union) to be interpreted as also precluding the legislation under the German Gewerbesteuergesetz (Law on local business tax) which prevents a resident company from deducting from its taxable business earnings ‘final’ losses of the type referred to in the first question of a permanent establishment in another Member State?

| 3. | If the first question is answered in the affirmative:
  In the event of the closure of the permanent establishment in the other Member State, can there be ‘final’ losses of the type referred to in the first question, even though there is at least a theoretical possibility that the company might once more open in the Member State concerned a permanent establishment, any profits of which could be offset against the previous losses? |
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3.

If the first question is answered in the affirmative:

In the event of the closure of the permanent establishment in the other Member State, can there be ‘final’ losses of the type referred to in the first question, even though there is at least a theoretical possibility that the company might once more open in the Member State concerned a permanent establishment, any profits of which could be offset against the previous losses?

| 4. | If the first and third questions are answered in the affirmative:
  Can the losses of the permanent establishment which, under the law of the State in which that establishment is situated, could have been carried forward to a subsequent tax period on at least one occasion also be considered to be ‘final’ losses of the type referred to in the first question of which account is to be taken by the State in which the parent establishment is resident? |
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4.

If the first and third questions are answered in the affirmative:

Can the losses of the permanent establishment which, under the law of the State in which that establishment is situated, could have been carried forward to a subsequent tax period on at least one occasion also be considered to be ‘final’ losses of the type referred to in the first question of which account is to be taken by the State in which the parent establishment is resident?

| 5. | If the first and third questions are to be answered in the affirmative:
  Is the obligation to take account of cross-border ‘final’ losses limited as to amount by the amounts of losses which the company could have calculated in the State in which the permanent establishment is situated, were the taking account of losses not precluded there? |
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5.

If the first and third questions are to be answered in the affirmative:

Is the obligation to take account of cross-border ‘final’ losses limited as to amount by the amounts of losses which the company could have calculated in the State in which the permanent establishment is situated, were the taking account of losses not precluded there?

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