Opinion of the Advocate General — ECLI:EU:C:2014:2164
Date: 2014-09-04
Language of the case: Dutch
Subject matter: Right of establishment;Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Second Chamber), 18 December 2014 Freedom of establishment — Tax legislation — Income tax — National rules under which costs relating to a listed historic building occupied by its owner are deductible — Possibility for non-resident taxpayers to opt for the regime applicable to resident taxpayers — Difference in treatment — Situations not comparable — No discrimination (Art. 49 TFEU) Article 49 TFEU must be interpreted as not precluding legislation of a Member State under which, on the ground of protection of the national cultural and historical heritage, costs relating to listed historic buildings may be deducted solely by owners of historic buildings situated in its territory, provided that that possibility is available to owners of historic buildings which may form part of the cultural and historical heritage of that Member State despite being located in the territory of another Member State. The fact that only owners of listed historic buildings situated in the territory of the Member State of taxation are granted a tax advantage whose aim is to preserve the cultural and historical heritage in that State is inherent in the objective pursued by the national legislature. The resulting difference in treatment therefore applies to categories of taxpayers who cannot be regarded as being in objectively comparable situations. The position could be different only if the taxpayer were to establish that, although the historic building of which he is the owner is situated in the territory of a Member State other than the Member State of taxation, it nevertheless forms part of the cultural and historical heritage of the latter State and that such a circumstance would render it capable of being protected under the law of that Member State on historic buildings but for the fact that it is situated outside national territory. (see paras 31-34, operative part)