CELEX: 62014CA0388
Language: en
Date: 2015-12-17 00:00:00
Title: Case C-388/14: Judgment of the Court (Third Chamber) of 17 December 2015 (request for a preliminary ruling from the Finanzgericht Köln — Germany) — Timac Agro Deutschland GmbH v Finanzamt Sankt Augustin (Reference for a preliminary ruling — Tax legislation — Corporation tax — Freedom of establishment — Non-resident permanent establishment — Avoidance of double taxation by exemption of the income of the non-resident permanent establishment — Taking account of losses incurred by that permanent establishment — Reincorporation of the losses deducted previously in the event that the non-resident establishment is transferred — Definitive losses)

22.2.2016   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 68/14
            
         Judgment of the Court (Third Chamber) of 17 December 2015 (request for a preliminary ruling from the Finanzgericht Köln — Germany) — Timac Agro Deutschland GmbH v Finanzamt Sankt Augustin
   (Case C-388/14) (1)
   
   ((Reference for a preliminary ruling - Tax legislation - Corporation tax - Freedom of establishment - Non-resident permanent establishment - Avoidance of double taxation by exemption of the income of the non-resident permanent establishment - Taking account of losses incurred by that permanent establishment - Reincorporation of the losses deducted previously in the event that the non-resident establishment is transferred - Definitive losses))
   (2016/C 068/17)
   Language of the case: German
   
      Referring court
   
   Finanzgericht Köln
   
      Parties to the main proceedings
   
   
      Applicant: Timac Agro Deutschland GmbH
   
      Defendant: Finanzamt Sankt Augustin
   
      Operative part of the judgment
   
   
               1.
            
            
               Article 49 TFEU must be interpreted as not precluding a Member State’s tax regime, such as that at issue in the main proceedings, under which, in the event of transfer by a resident company to a non-resident company within the same group of a permanent establishment situated in another Member State, the losses previously deducted in respect of the establishment transferred are reincorporated into the taxable profit of the transferring company where, under a double taxation convention, the income of such a permanent establishment is exempt from tax in the Member State in which the company to which that establishment belonged has its seat.
            
         
               2.
            
            
               Article 49 TFEU is to be interpreted as not precluding a Member State’s tax regime, such as that at issue in the main proceedings, which, in the event of transfer by a resident company to a non-resident company within the same group of a permanent establishment situated in another Member State, excludes the possibility, for the resident company, of taking into account in its tax base the losses of the establishment transferred where, under a double taxation convention, the exclusive power to tax the profits of that establishment lies with the Member State in which the establishment is situated.
            
         
      (1)  OJ C 372, 20.10.2014.