CELEX: 62017CA0641
Language: en
Date: 2019-11-13 00:00:00
Title: Case C-641/17: Judgment of the Court (Second Chamber) of 13 November 2019 (request for a preliminary ruling from the Finanzgericht München — Germany) — College Pension Plan of British Columbia v Finanzamt München Abteilung III (Reference for a preliminary ruling — Free movement of capital — Taxation of pension funds — Difference in treatment between resident pension funds and non-resident pension funds — Legislation of a Member State allowing resident pension funds to reduce their taxable profits by deducting the reserves intended to pay for pensions and to set the tax levied on dividends off against corporation tax — Comparability of situations — Justification)

13.1.2020   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 10/3
            
         
      Judgment of the Court (Second Chamber) of 13 November 2019 (request for a preliminary ruling from the Finanzgericht München — Germany) — College Pension Plan of British Columbia v Finanzamt München Abteilung III
      (Case C-641/17) (1)
      
      (Reference for a preliminary ruling - Free movement of capital - Taxation of pension funds - Difference in treatment between resident pension funds and non-resident pension funds - Legislation of a Member State allowing resident pension funds to reduce their taxable profits by deducting the reserves intended to pay for pensions and to set the tax levied on dividends off against corporation tax - Comparability of situations - Justification)
      (2020/C 10/03)
      Language of the case: German
      
         Referring court
      
      Finanzgericht München
      
         Parties to the main proceedings
      
      
         Applicant: College Pension Plan of British Columbia
      
         Defendant: Finanzamt München Abteilung III
      
         Operative part of the judgment
      
      
                  1.
               
               
                  Articles 63 and 65 TFEU must be interpreted as precluding national legislation under which dividends distributed by a resident company to a resident pension fund (i) are subject to a withholding tax which can be set off in its entirety against the corporation tax payable by such a fund, and give rise to a refund when the tax withheld at source exceeds the corporation tax due, and (ii) do not result in any increase in the profit liable to corporation tax or only a comparatively small one, due to the possibility of deducting from that profit provisions for pension commitments, whereas dividends paid to a non-resident pension fund are subject to a withholding tax which constitutes a definitive tax for such a fund, when the non-resident pension fund allocates dividends received to make provisions for pensions which it will have to pay in the future, this being a matter for the referring court to ascertain.
               
            
                  2.
               
               
                  Article 64(1) TFEU must be interpreted as meaning that national legislation, under which dividends distributed by a resident company to a resident pension fund (i) are subject to a withholding tax which can be set off in its entirety against the corporation tax payable by that fund, and give rise to a refund when the tax withheld at source exceeds the corporation tax due by the fund, and (ii) do not result in any increase in the profit liable to the corporation tax payable or only a comparatively small one, due to the possibility of deducting from that profit provisions for pension commitments, whereas dividends paid to a non-resident pension fund are subject to a withholding tax which constitutes a definitive tax for such a fund, cannot be considered to be a restriction existing on 31 December 1993 for the purposes of applying that provision.
               
            
         (1)  OJ C 112, 26.3.2018.