III.1. Court of Justice of the European Union
Judgment of the Court, of 7th September, Case C-6/16: Reference for a preliminary ruling. Direct taxation. Freedom of establishment. Free movement of capital. Withholding tax. Directive 90/435/EEC. Article 1(2). Article 5(1). Exemption. Dividends distributed by a resident subsidiary to a non-resident parent company controlled directly or indirectly by one or more residents of third States. Presumption. Fraud, tax evasion and abuse.
“Article 1(2) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Council Directive 2003/123/EC of 22 December 2003, first, and Article 49 TFEU, secondly, must be interpreted as precluding national tax legislation, such as that at issue in the main proceedings, which subjects the grant of the tax advantage provided for by Article 5(1) of that directive — namely, the exemption from withholding tax of profits distributed by a resident subsidiary to a non-resident parent company, where that parent company is directly or indirectly controlled by one or more residents of third States — to the condition that that parent company establish that the principal purpose or one of the principal purposes of the chain of interests is not to take advantage of that exemption.”
Judgment of the Court, of 14th September, Case C-628/15: Reference for a preliminary ruling. Free movement of capital. Article 63 TFEU. Scope. Tax legislation of a Member State. Corporation tax. Tax credit. Pension funds. Refusal to grant the tax credit to shareholders not subject to tax on investment income for dividends arising from foreign income. Interpretation of the judgment of 12 December 2006, Test Claimants in the FII Group Litigation (C‑446/04, EU:C:2006:774). Tax credit unlawfully withheld. Remedies.
“Article 63 TFEU must be interpreted as conferring, in circumstances such as those at issue in the main proceedings, rights on a shareholder receiving dividends treated as ‘foreign income dividends’.
EU law requires that the domestic law of a Member State provide remedies to shareholders who, in a situation such as that at issue in the main proceedings, have received dividends treated as ‘foreign income dividends’ but have not, however, obtained a tax credit in respect of those dividends, in order to enable those shareholders to enforce the rights that Article 63 TFEU confers on them. In that regard, the national court with jurisdiction must ensure that shareholders not subject to income tax in respect of dividends who have received dividends that have their origin in foreign-sourced dividends treated as ‘foreign income dividends’, such as the Trustees of the BT Pension Scheme, have a remedy which, first, ensures payment of such a tax credit — of which the beneficiaries have been unduly deprived — under rules which are not less favourable than those relating to an action seeking payment of a tax credit, or of a comparable tax advantage, in a situation where the tax authorities have unduly deprived the beneficiaries of that tax credit or of that tax advantage on a distribution of dividends which have their origin in the dividends received from a UK-resident company and, second, allows the protection of the rights conferred on such shareholders by Article 63 TFEU to be guaranteed in an effective manner.
Neither the fact that the Trustees of the BT Pension Scheme are not subject to income tax in respect of the dividends they receive, the fact that the infringement of EU law at issue is not, in the referring court’s view, sufficiently serious so as to give rise to the non-contractual liability of the Member State concerned in favour of the company distributing dividends treated as ‘foreign income dividends’, under the principles established in the judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79) nor the fact that a UK-resident company has distributed an increased amount of dividends treated as ‘foreign income dividends’ in order to make up for the fact that the recipient shareholder was not entitled to a tax credit are such as to alter the answers given to the other questions asked by the referring court. ”
III.2. Constitutional Court
Most of the Constitutional Court Case Law was related to electoral issues, namely, the admissibility of the list of candidates (Judgment no. 482/2017) or the ineligibility of the candidate submitted (Judgment no. 495/2017); concerning institutional advertising (Judgment no. 585, 588/2017); and especially the appeal of final decisions which decline the presentation of candidacies for a variety of reasons, whether because of late submission (Judgment no. 505, 523/2017), whether due the incompleteness of the declarations of proposition (Judgment no. 494, 508/2017); or even because of the fact that the n.º of alternate candidates exceeds the number of effective candidates (Judgment no. 498,499/2017).
III.3. Courts of Justice
Judgment of Oporto’s Court of Appeal of 14 September 2017, Case No. 541/17.0T8AMT.P1: Termination of the Insolvency proceeding; Restrictive Insolvency; Residual Debt Exemption Procedure.
Judgment of Lisbon’s Court of Appeal of 12 September 2017, Case No. 460/17.0T8PDL-A.L1-1: Company Revival Procedure; Provisional Judicial Administrator.
Judgment of Lisbon’s Court of Appeal of 14 September 2017, Case No. 3250-16.4T8ALM-A.L1-8: Resolution Fund; Noncontractual Civil Liability; Jurisdiction related to subject matter.
Judgment of Lisbon’s Court of Appeal of 14 September 2017, Case No. 6909/16.2T8LSB-2: Legal Liability; Transfer; Banking Institution.
Judgment of Coimbra’s Court of Appeal of 12 September 2017, Case No. 986/16.3T8GRD.C1: Bank Legal Liability; Financial Intermediation; Duty to Inform.
III.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court of 13 September 2017, Case No. 029/16: VAT; Investment; Property; Rural Tourism and Tourist Accommodation.
Judgment of the Central Administrative Court South of 19 September 2017, Case No. 09164/15: IMI – article 9 (1) in subparagraph d) and article 9 (4) CIMI.
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