CELEX: 62008CA0440
Language: en
Date: 2010-03-18 00:00:00
Title: Case C-440/08: Judgment of the Court (First Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — F. Gielen v Staatssecretaris van Financiën (Direct taxation — Article 43 EC — Non-resident taxable person — Business operator — Right to a self-employed person’s deduction — Hours test — Discrimination between resident and non-resident taxable persons — Option to be treated as a resident taxable person)

22.5.2010   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 134/6
            
         Judgment of the Court (First Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — F. Gielen v Staatssecretaris van Financiën
   (Case C-440/08) (1)
   
   (Direct taxation - Article 43 EC - Non-resident taxable person - Business operator - Right to a self-employed person’s deduction - Hours test - Discrimination between resident and non-resident taxable persons - Option to be treated as a resident taxable person)
   2010/C 134/09
   Language of the case: Dutch
   
      Referring court
   
   Hoge Raad der Nederlanden
   
      Parties to the main proceedings
   
   
      Applicant: F. Gielen
   
      Defendant: Staatssecretaris van Financiën
   
      Re:
   
   Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 43 EC — National legislation granting self-employed business operators the right to deduct a flat-rate amount from their profits provided that they have devoted at least 1 225 hours per calendar year to the activities of the business — No account taken, solely in the case of a non-resident taxpayer, of hours devoted to an undertaking established in another Member State
   
      Operative part of the judgment
   
   Article 49 TFEU precludes national legislation which, in relation to the granting of a tax advantage, such as the self-employed person’s deduction at issue in the main proceedings, is discriminatory towards non-resident taxable persons, even though those taxable persons may opt for the regime applicable to resident taxable persons in order to benefit from that tax advantage.
   
      (1)  OJ C 327, 20.12.2008.