{"id":4568,"date":"2017-10-09T11:05:39","date_gmt":"2017-10-09T11:05:39","guid":{"rendered":"https:\/\/mgra.pt\/?p=4568\/"},"modified":"2020-10-06T10:44:33","modified_gmt":"2020-10-06T10:44:33","slug":"jurisprudencia_09_2017","status":"publish","type":"post","link":"https:\/\/e-legal-blawg.com\/en\/2017\/10\/09\/jurisprudencia_09_2017\/","title":{"rendered":"CASE-LAW – SEPTEMBER 2017 –"},"content":{"rendered":"

III. CASE-LAW<\/strong><\/p>\n

III.1. Court of Justice of the European Union<\/strong><\/p>\n

Judgment of the Court, of 7th September, Case C-6\/16<\/strong>: Reference for a preliminary ruling. Direct taxation. Freedom of establishment. Free movement of capital. Withholding tax. Directive 90\/435\/EEC. Article\u00a01(2). Article\u00a05(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.<\/p>\n

Summary:
\n<\/u><\/strong>\u201cArticle\u00a01(2) of Council Directive 90\/435\/EEC of 23\u00a0July 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\u00a0December 2003, first, and Article\u00a049 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\u00a05(1) of that directive\u00a0\u2014 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\u00a0\u2014 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.\u201d
\n<\/em>http:\/\/curia.europa.eu\/juris\/document\/document.jsf;jsessionid=9ea7d2dc30d682e7193ad1a542a8851df641bdc78c79.e34KaxiLc3qMb40Rch0SaxyMbx90?text=&docid=194101&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=134463<\/a><\/p>\n

Judgment of the Court, of 14th September, Case C-628\/15: <\/strong>Reference for a preliminary ruling. Free movement of capital. Article\u00a063 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\u00a0December 2006,\u00a0Test Claimants in the FII Group Litigation<\/em>\u00a0(C\u2011446\/04, EU:C:2006:774). Tax credit unlawfully withheld. Remedies.<\/p>\n

Summary:
\n<\/u><\/strong>\u201c<\/em>Article\u00a063 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 \u2018foreign income dividends\u2019.<\/em><\/p>\n

EU<\/em> 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 \u2018foreign income dividends\u2019 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\u00a063 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 \u2018foreign income dividends\u2019, such as the Trustees of the BT Pension Scheme, have a remedy which, first, ensures payment of such a tax credit\u00a0\u2014 of which the beneficiaries have been unduly deprived\u00a0\u2014 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\u00a063 TFEU to be guaranteed in an effective manner.<\/p>\n

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\u2019s 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 \u2018foreign income dividends\u2019, under the principles established in the judgment of 5\u00a0March 1996, Brasserie du p\u00eacheur and Factortame (<\/em>C\u201146\/93 and\u00a0C\u201148\/93<\/em><\/a>,\u00a0<\/em>EU:C:1996:79<\/em><\/a>) nor the fact that a UK-resident company has distributed an increased amount of dividends treated as \u2018foreign income dividends\u2019 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.<\/em> \u201d
\n<\/em>http:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/HTML\/?uri=CELEX:62015CJ0628&from=PT<\/a><\/p>\n

III.2. Constitutional Court
\n<\/strong>Most of the Constitutional Court Case Law was related to electoral issues, namely, the admissibility of the list of candidates (Judgment no. 482\/2017<\/strong>) or the ineligibility of the candidate submitted (Judgment no. 495\/2017<\/strong>); concerning institutional advertising (Judgment no. 585, 588\/2017<\/strong>); 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<\/strong>), whether due the incompleteness of the declarations of proposition (Judgment no. 494, 508\/2017<\/strong>); or even because of the fact that the n.\u00ba of alternate candidates exceeds the number of effective candidates (Judgment no. 498,499\/2017<\/strong>).<\/p>\n

III.3. Courts of Justice<\/strong><\/p>\n

Judgment of Oporto\u2019s Court of Appeal of 14 September 2017, Case No. 541\/17.0T8AMT.P1: <\/strong>Termination of the Insolvency proceeding; Restrictive Insolvency; Residual Debt Exemption Procedure.
\nhttp:\/\/www.dgsi.pt\/jtrp.nsf\/56a6e7121657f91e80257cda00381fdf\/66463f6c2411fb6e802581a70035b602?OpenDocument<\/a><\/p>\n

Judgment of Lisbon\u2019s Court of Appeal of 12 September 2017, Case No. 460\/17.0T8PDL-A.L1-1<\/strong>: Company Revival Procedure; Provisional Judicial Administrator.
\nhttp:\/\/www.dgsi.pt\/jtrl.nsf\/33182fc732316039802565fa00497eec\/a6db13dfcc552201802581a8003c8250?OpenDocument<\/a><\/p>\n

Judgment of Lisbon\u2019s Court of Appeal of 14 September 2017, Case No. 3250-16.4T8ALM-A.L1-8<\/strong>: Resolution Fund; Noncontractual Civil Liability; Jurisdiction related to subject matter.
\nhttp:\/\/www.dgsi.pt\/jtrl.nsf\/33182fc732316039802565fa00497eec\/9440d94b97ffa16c802581ad004d40a4?OpenDocument<\/a><\/p>\n

Judgment of Lisbon\u2019s Court of Appeal of 14 September 2017, Case No. 6909\/16.2T8LSB-2<\/strong>: Legal Liability; Transfer; Banking Institution.
\nhttp:\/\/www.dgsi.pt\/jtrl.nsf\/33182fc732316039802565fa00497eec\/5829a0253aecccf9802581a9003b6b2a?OpenDocument<\/a><\/p>\n

Judgment of Coimbra\u2019s Court of Appeal of 12 September 2017, Case No. 986\/16.3T8GRD.C1<\/strong>: Bank Legal Liability; Financial Intermediation; Duty to Inform.
\nhttp:\/\/www.dgsi.pt\/jtrc.nsf\/8fe0e606d8f56b22802576c0005637dc\/3048da6717912e27802581ad003e5a5c?OpenDocument<\/a><\/p>\n

III.4. Administrative and Tax Courts<\/strong><\/p>\n

Judgment of the Supreme Administrative Court of 13 September 2017, Case No. 029\/16<\/strong>: VAT; Investment; Property; Rural Tourism and Tourist Accommodation.
\nhttp:\/\/www.dgsi.pt\/jsta.nsf\/35fbbbf22e1bb1e680256f8e003ea931\/9813df926363fbbf8025819c0035f907?OpenDocument<\/a><\/p>\n

Judgment of the Central Administrative Court South of 19 September 2017, Case No. 09164\/15<\/strong>: IMI \u2013 article 9 (1) in subparagraph d) and article 9 (4) CIMI.
\nhttp:\/\/www.dgsi.pt\/jtca.nsf\/170589492546a7fb802575c3004c6d7d\/729684a5dabfa4dd802581a200530b94?OpenDocument<\/a><\/p>\n<\/div><\/div><\/div>

Partilhar este artigo<\/p>

<\/i><\/a><\/i><\/a><\/i><\/a><\/i><\/span><\/a><\/div><\/div><\/div><\/div><\/div>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"rs_blank_template":"","rs_page_bg_color":"","slide_template_v7":"","footnotes":""},"categories":[26,30],"tags":[],"class_list":["post-4568","post","type-post","status-publish","format-standard","hentry","category-e-legal-en","category-e-legal17","no-post-thumbnail"],"_links":{"self":[{"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/posts\/4568","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/comments?post=4568"}],"version-history":[{"count":0,"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/posts\/4568\/revisions"}],"wp:attachment":[{"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/media?parent=4568"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/categories?post=4568"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/e-legal-blawg.com\/en\/wp-json\/wp\/v2\/tags?post=4568"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}