Commission requests exit tax changes

The European Commission has formally requested Belgium, Denmark and the Netherlands to change tax rules which impose an immediate exit tax when companies transfer their seat or assets to another EU Member State.

The Commission considers these provisions to be incompatible with the freedom of establishment provided for in Article 49 of the Treaty on the Functioning of the European Union (TFEU). A similar case against Sweden has been closed, since Sweden had complied with the Commission's request.

The Belgian tax law provides for immediate taxation of capital gains in case the fiscal residence of a company is changed to outside Belgium. Similarly, the Danish tax lax provides for immediate taxation of capital gains on assets transferred outside Denmark. Non-incorporated businesses and companies in the Netherlands must pay an exit tax. The Commission considers that such exit tax rules are likely to dissuade businesses and companies from exercising their right of freedom of establishment and constitute restrictions of Article 49 TFEU.

The Commission's opinion is based on the Treaty as interpreted by the Court of Justice of the European Union in De Lasteyrie du Saillant, Case C-9/02 of 11 March 2004, and in N, Case-470/04 of 7 September 2006, and on the Commission's Communication on exit taxation (COM(2006)825 of 19 December 2006). Immediate taxation of accrued but unrealised capital gains at the moment of exit is not allowed if there would be no similar taxation in comparable domestic situations. It follows from the case-law that the Member States have to defer the collection of their taxes until the moment of actual realisation of the capital gains.

The Commission had already referred Spain and Portugal to the Court of Justice for similar exit tax rules and sent a reasoned opinion to Sweden.

Background

The incriminated provisions are the following:

• In Belgium, article 208, 209 and 210, paragraph 1, point 4 of the Income tax code (CIR92);
• In Denmark, Section 7A of the Danish Corporate Tax Act;
• In the Netherlands, articles 3.60 and 3.61 of the Income tax law 2001 and articles 15c and 15d of the Corporate tax law 1969.

The request takes the form of a reasoned opinion (the second step of the infringement procedure provided for in Article 258 of the Treaty). If there is no satisfactory reaction to the reasoned opinions within two months, the Commission may decide to refer the case to the Court of Justice of the European Union.

The Commission's case reference numbers are 2008/4250 (BE), 2008/2157 (DK) and 2008/2207 (NL).