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Jesper Johansson
Intertax
Volume 49, Issue 11 (2021) pp. 948 – 955
https://doi.org/10.54648/taxi2021094
Abstract
This contribution examines the decision of the Court of Justice of the European Union (CJEU) of 4 July 2018 in Case C-28/17 NN A/S concerning the compatibility of a Danish rule prohibiting double deductions of losses with the freedom of establishment in Article 49 of the Treaty on the Functioning of the European Union (TFEU). In this case, the Court found the rule to be compatible with the freedom of establishment unless its application deprived the group of any effective possibility of deducting the loss in either of the two Member States involved. While this article finds merit in the Court’s reasoning, it also finds a few inadequacies mainly due to the Court disregarding differences in tax rates between Member States. Another finding is that, from a theoretical perspective, Denmark should not be required to allow the group to set off its loss considering the specific circumstances at hand in the underlying case. Furthermore, the judgment is presented as a potential trendsetter since it represents a development in the Court’s case law on rules preventing double deductions of losses, now handled in the Anti-Tax Avoidance Directive (ATAD).
Keywords
ATAD, NN A/S, CJEU, freedom of establishment, trendsetter.
Extract
Italy, fifty years ago, passed a bunch of bills which overhauled its tax system. Thereafter, the old taxes, which had survived for about a century, were replaced by a set of ‘modern’ ones. The process was prompted by a law of delegation, which laid down the cornerstones of the tax reform to come: its principles – such as personality, progressivity, differentiation, simplification, and so on – were meant to steer the Country towards a new era of social justice and economic development. Things, regrettably, went otherwise.
With the important exception of Value Added Tax (VAT), whose implementation has always been dependent on European law, the guidelines of the 1970s Tax Reform were superseded in various ways, as summarized below.
According to the law of delegation, the Italian tax jurisdiction had to stick to the personal progressive income tax (PIT): this notwithstanding, it soon reverted to the old schedular approach. In regard of corporate profits, the many attempts to deal with double taxation have been eventually dismissed. The idea of taxing income differently, whether earned or unearned, has been abandoned, or rather subverted, to the detriment of labour income. Tax returns of small businesses and self-employed are hardly likely to be controlled by the tax authority. Italy, there are few doubts about that, seems to be in desperate need of a new tax reform.
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