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On February 14, 2019 the General Court judged in the joined cases T‑131/16 (Belgium v Commission) and T‑263/16 (Magnetrol International v Commission) (ECLI:EU:T:2019:91). The General Court judged that the European Commission wrongly considered that the Belgian system relating to the excess profit constituted an aid scheme.

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On February 14, 2019 the Court of Justice of the European Union (CJEU) judged in Case C-562/17 Nestrade SA versus Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (ECLI:EU:C:2019:115).

This reference for a preliminary ruling concerns the interpretation of provisions of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory (OJ 1986, L 326, p. 40) (‘the Thirteenth Directive’).

The request has been made in proceedings between Nestrade SA, a commercial company established in Switzerland, and the Agencia Estatal de la Administración Tributaria (AEAT) (State Tax Administration Agency, Spain) and the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain) concerning the partial refusal to refund value added tax (VAT) owing to a final decision prior to that refusal.

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On February 14, 2019 the Court of Justice of the European Union (CJEU) judged in Case C-531/17 Vetsch Int. Transporte GmbH intervener: Zollamt Feldkirch Wolfurt (ECLI:EU:C:2019:114).

This request for a preliminary ruling concerns the interpretation of Article 143(d) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’) and Article 143(1)(d) of that directive, as amended by Council Directive 2009/69/EC of 25 June 2009 (OJ 2009 L 175, p. 12) (‘the amended VAT Directive’).

The request has been made in proceedings between Vetsch Int. Transporte GmbH (‘Vetsch’) and the Zollamt Feldkirch Wolfurt (Customs Office, Feldkirch Wolfurt, Austria; ‘the Customs Office’) concerning the exemption from value added tax (VAT) of imports of goods from Switzerland into Austria for onward transfer to Bulgaria.

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On February 12, 2019 the OECD announced that on the same date Guernsey deposited its instrument of ratification for the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI).

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On February 12, 2019 the OECD issued a press release announcing that on that same date Mauritania signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters. By doing so, Mauritania became the 127th signatory to the convention.

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On January 11, 2019 the OECD announced that Armenia joined the Inclusive Framework on BEPS. Therewith the total number of jurisdictions that have joined the Inclusive Framework on BEPS comes to 128.

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On January 29, 2019 the OECD announced that on the same date Ireland deposited its instrument of ratification for the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI).

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On January 24, 2019 the Court of Justice of the European Union (CJEU) judged in Case C-165/17 Morgan Stanley & Co International plc versus Ministre de l’Économie et des Finances (ECLI:EU:C:2019:58).

This request for a preliminary ruling concerns the interpretation of Article 17(2), (3) and (5) and Article 19(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1; ‘the Sixth Directive’), and of Articles 168, 169 and 173 to 175 of Council Directive 2006/112/EC on the common system of value added tax (OJ 2006 L 347, p. 1).

The request has been made in proceedings between Morgan Stanley & Co International plc (‘Morgan Stanley’) and the ministre de l’Économie et des Finances (Minister for the Economy and Finance, France) (‘the tax authority’), concerning the deduction of the value added tax (VAT) paid by the Paris branch of Morgan Stanley (‘the Paris branch’), first, in respect of expenditure used for the transactions of the principal establishment located in the United Kingdom and, second, in respect of the general costs used for both transactions of the principal establishment and those of the branch.

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From the overview of Signatories of the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports (CbC MCAA) as available on the website of the OECD we understand that as per January 24, 2019 the total number of signatories to the CbC MCAA went up to 76.

From the overview we furthermore understand that Panama signed the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports (CbC MCAA) on January 24, 2019 and by doing so it became the latest signatory to the CbC MCAA.

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On January 24, 2019 the OECD issued a press release announcing that on January 23, 2019 Papua New Guinea signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI). Therewith Papua New Guinea became the 87th jurisdiction to join the MLI.

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On January 17, 2019 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Hogan in the Case C-133/18, Sea Chefs Cruise Services GmbH versus Ministre de l’Action et des Comptes publics (ECLI:EU:C:2019:37) was published.

Where a taxpayer fails to respond within the one month period stipulated by Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State to a request for further information from the relevant tax authorities, does this mean that its entitlement to seek a VAT credit is thereby automatically extinguished? This is the essential issue which arises in this request for a preliminary reference.

The present request accordingly concerns the interpretation of Article 20(2) of Directive 2008/9. The request for a reference has been made in proceedings before the Tribunal administratif de Montreuil (Administrative Court, Montreuil, France) between Sea Chefs Cruise Services GmbH (‘Sea Chefs’), a company established in Germany, and the Ministre de l’Action et des Comptes publics (Minister for Public Action and Accounts, France) concerning the decision of the latter to reject Sea Chefs’ claim for the refund of a VAT credit in respect of the period 1 January to 31 December 2014.

By its preliminary question, the referring court seeks in essence to ascertain whether the time limit of one month to provide information laid down in Article 20(2) of Directive 2008/9 constitutes a mandatory time limit, that is to say, a time limit non-compliance with which results in forfeiture of the right to a refund or, alternatively, does this provision admit of an interpretation whereby it is possible to regularise a VAT refund application by adducing evidence in the context of an appeal pursuant to Article 23 of that directive.

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On January 10, 2019 the Court of Justice of the European Union (CJEU) judged in Case C-410/17 A Oy, intervening party: Veronsaajien oikeudenvalvontayksikkö (ECLI:EU:C:2019:12).

This request for a preliminary ruling concerns the interpretation of Article 2(1)(a) and (c), Article 14(1) and Article 24(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (the ‘VAT Directive’).

The request has been made in proceedings brought by A Oy concerning the treatment, for the purposes of value added tax (VAT), of transactions made, first, under a demolition contract requiring the service provider to dispose of demolition waste which, as it contains iron, may, pursuant to that contract, be resold by the latter and, second, under a contract for the purchase of goods for dismantling, which includes the obligation for the purchaser to demolish or dismantle (hereinafter referred to collectively as ‘dismantling’) and to dispose of those goods, together with the disposal of the resulting waste.

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On January 10, 2019 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Kokott in the Case C-607/17, Skatteverket versus Memira Holding AB (ECLI:EU:C:2019:8) was published.

The point at issue in this case is whether a Swedish parent company has the right, on the basis of Article 49 TFEU in conjunction with Article 54 TFEU, to deduct the losses in a wholly-owned subsidiary established in Germany from its profits if that subsidiary is wound up by way of a merger with the parent company and it was not able fully to ‘use’ its losses made in Germany there.

The fundamental freedoms do not in principle require cross-border use of losses within a group. Losses arising abroad would thus be forfeited. Only in the case of final losses is it possible that cross-border use of losses is necessary, for reasons of proportionality, in accordance with the judgment delivered by the Grand Chamber of the Court of Justice in Marks & Spencer in 2005.

A number of problems have grown up around these ‘final losses’, which have already led to several decisions by the Court. However, the decisions thus far have not been able to clarify definitively the conditions for final losses, as is evident from this new reference. In this regard, the Court will presumably repeatedly be given an opportunity — if it still wishes to adhere to the final losses exception — to refine this category.

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On January 10, 2019 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Kokott in the Case C-608/17, Skatteverket versus Holmen AB (ECLI:EU:C:2019:9) was published.

In the present case and one other case, the Court is dealing with the implementation and interpretation of its case-law by the Member States, in this instance the Kingdom of Sweden. The point at issue is whether a Swedish parent company has the right, on the basis of Article 49 in conjunction with Article 54 TFEU, to deduct losses in an indirectly and wholly owned Spanish subsidiary (a sub-subsidiary) from its profits made in Sweden if the sub-subsidiary has been liquidated and was not able to use all its losses in Spain (that is, to set them off against its own or other profits of the Spanish group).

The Grand Chamber of the Court of Justice ruled in 2005 that cross-border use of losses within a group is not required in principle by the fundamental freedoms. Losses arising abroad would be forfeited and could not therefore be used by other members of the group in national territory. Provision is to be made for cross-border use of losses only in the case of final losses in accordance with the principle of proportionality.

A number of problems have grown up around this category of ‘final losses’ created by the Court, which has already led to several decisions by the Court (including two others by the Grand Chamber). However, none of these decisions thus far have been able to clarify definitively the conditions for final losses.

In this regard, the Court has another opportunity — if it still wishes to adhere to the final losses exception — to refine this category.

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On January 3, 2019 the OECD announced that the Cook Islands joined the Inclusive Framework on BEPS. Therewith the total number of jurisdictions that have joined the Inclusive Framework on BEPS comes to 125.

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On December 28, 2018 the Government of the Hong Kong Special Administrative Region issued a press release announcing that the Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of the Republic of Finland for the Elimination of Double Taxation with respect to Taxes on Income and the Prevention of Tax Evasion and Avoidance (which was signed on May 24, 2018) (Hereafter: the DTA) will enter into force on December 30, 2018.

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On December 28, 2018 the Dutch Government published its lis of low-tax jurisdictions. The list consists out of the 5 jurisdictions that are currently on the EU list of non-cooperative jurisdictions for tax purposes and 16 other jurisdictions that Dutch Government considers to be low-tax jurisdictions. These latter are either jurisdictions that do not tax profits, or jurisdictions that do tax profits but that do so against a nominal rate that is lower than 9%.

The list will be used in relation to three Dutch measures to combat tax avoidance.

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On November 27, 2018 the exchange of diplomatic notes between the Government of Japan and the Government of the Kingdom of Denmark for entry into force of the Convention between Japan and the Kingdom of Denmark for the Elimination of Double Taxation with respect to Taxes on Income and the Prevention of Tax Evasion and Avoidance (which was signed on October 11, 2017) (Hereafter: the DTA) took place in Copenhagen.

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