Legal Alert – French Tax on Intra-Group Dividends in Breach of EU Law? – Finnish Groups May Be Entitled to Claim Tax Refunds
In 2012, France introduced an additional 3 % contribution to corporate tax. The additional contribution is levied on profits distributed by companies subject to corporate tax in France. The scope of the additional contribution includes French subsidiaries of foreign companies, but not permanent establishments. Therefore, the additional contribution is not levied when a French permanent establishment distributes income to its foreign head office.
Under EU law, companies should have the freedom to choose the most appropriate legal form for doing business in another Member State. This freedom of establishment is however restricted when a Member State introduces tax provisions that favour or discriminate a certain legal form.
This difference in tax treatment between a French permanent establishment of a foreign company and a French subsidiary of a foreign company, whose intra-group dividends are within the scope of the contribution, is likely to constitute a restriction of the freedom of establishment.
The French subsidiaries of Finnish companies may claim repayment of contribution levied on dividends distributed to their parent company. The repayment of the contribution levied in 2012 can be claimed until 31 December 2014.