Case C-436/08: Reference for a preliminary ruling from the Unabhänger Finanzsenat, Außenstelle Linz (Austria) lodged on 3 October 2008 — Haribo Lakritzen Hans Riegel BetriebsgmbH v Finanzamt Linz
Date: 2008-10-03
Institutions: Court of Justice
Subjects: Austria, EU law, economic discrimination, interpretation of the law, tax exemption

24.1.2009

EN

Official Journal of the European Union

C 19/11

Reference for a preliminary ruling from the Unabhänger
Finanzsenat, Außenstelle
on
3 October 2008 — Haribo Lakritzen Hans Riegel
BetriebsgmbH v Finanzamt Linz

(Austria)

lodged

Linz

(Case C-436/08)

(2009/C 19/18)

Language of the case: German

Referring court

Unabhänger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicant: Haribo Lakritzen Hans Riegel BetriebsgmbH

Defendant: Finanzamt Linz

Questions referred

1. Does Community law preclude a national authority — in
order to avoid discriminating against foreign equity holdings
which, unlike domestic (Austrian) equity holdings, are not
the equity
tax exempt under legislation until the size of
holding reaches 25 % (under present legislation 10 %) —
from applying the credit method because the Austrian
Verwaltungsgerichtshof (Administrative Court) has ruled that
this outcome is closest to the (hypothetical) intention of the
legislature, whilst tax exemption would be granted if the
discriminatory 25 % (10 %)
foreign equity
holdings were simply not applied?

threshold for

2. Does Community law preclude: the general exemption of
domestic equity holdings whilst the credit method is applied
to foreign equity holdings of
less than 25 % (10 %) and
shareholders are faced with the impossible or disproportio-
nately costly task of adducing evidence of a previous foreign
charge to (corporation) tax; or

— the grant of exemption to domestic equity holdings of
less than 25 % (10 %) whilst the credit method is applied
to foreign equity holdings of less than 25 % (10 %) and
shareholders are charged with the impossible or dispro-
portionately costly task of adducing evidence; or

— the general exemption of domestic equity holdings and
of foreign equity holdings of 25 % (10 %) or more whilst
the credit method is applied to foreign equity holdings of
less than 25 % (10 %) and shareholders are charged with
the impossible or disproportionately costly task of addu-
cing evidence?

2.1 If the answer to the second question should be in the
negative: Does Community law preclude the imposition
of an obligation on a taxpayer to adduce evidence of a
previous foreign charge to (corporation) tax so as to
obtain relief
from double economic taxation even
though the production of such evidence is an impossible
or disproportionately costly task, when it could be
produced by the authority applying the Directive on
mutual assistance?

3. Does Community law preclude a provision whereby the
credit method is to apply to non-member-country equity
holdings of
less than 25 % (10 %) which fall within the
scope of free movement of capital where the production of
evidence of payment of a previous
foreign charge to
(corporation)
tax is an impossible or disproportionately
costly task because of the small size of the equity holdings,
whilst provision is made for the exemption method to apply
to domestic equity holdings in general — that is to say, irre-
spective of the size of the equity holdings — and relief from
double economic taxation is therefore obtained in any event?

3.1 If the answer to the third question should be in the affir-
mative: Does Community law preclude the refusal of
exemption for income from non-member-country equity
holdings where the size of the equity holding is less
than 25 % (10 %) even though exemption for income
from equity holdings of more than 25 % (10 %) is not
linked to satisfaction of particular requirements compli-
ance with which could be examined only by obtaining
information from the competent authorities of
the
country concerned and exemption is granted in such
cases without any other conditions being attached?

3.2 If the answer to the third question should be in the
negative: Does Community law preclude the refusal of a
credit for foreign corporation tax for income from non-
member-country equity holdings where the size of the
equity holding is less than 25 % (10 %) even though tax
exemption for income from holdings of more than
25 % (10 %) is not linked to satisfaction of particular
requirements compliance with which could be examined
only by obtaining information from the competent
authorities of the country concerned and exemption is
granted in such cases without any other conditions
being attached?

Reference for a preliminary ruling from the Unabhängiger
Finanzsenat, Außenstelle
on
3 October 2008 — Österreichische Salinen AG v
Finanzamt Linz

(Austria)

lodged

Linz

(Case C-437/08)

(2009/C 19/19)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicant: Österreichische Salinen AG

Defendant: Finanzamt Linz