Missbrauchsvorschriften zur Quellenbesteuerung auf Grundlage der Mutter-Tochterrichtline

Abstract

The Directive 90/435/EWG / 2011/96/EU was established to prevent economic double taxation within the European Union. It allows dividends paid by a subsidiary to its parent company in another EU member state to be exempt from withholding tax. This is intended to improve the international competitiveness of European companies. In the past the tax exemption has often been used for tax avoidance models. Multinational corporations set up holding companies in countries with favorable tax systems (often without substantial economic activity) in order to pass on dividends tax-free. As a result, some countries recorded considerable tax losses, while companies obtained unlawful tax advantages with the help of “ Briefkastenfirmen ”. To counteract this abuse, the Directive was supplemented in 2015 by Directive 2015/121/EU. These amendments led to a general ban on abuse and the introduction of the Principal Purpose Test (PPT), which denies tax benefits if the main purpose of a structuring is tax avoidance. These measures were implemented in Austria through § 10 (4) KStG and § 22 BAO. Since then, the tax authorities have been required to examine more closely whether companies have actual economic substance or whether a structure was chosen solely to take advantage of the tax exemption. These developments have a significant impact on companies in Austria. On the one hand, the new regulations help to close tax loopholes and create fair competitive conditions. On the other hand, companies are faced with higher administrative requirements and legal uncertainties, as the criteria for economic substance are not always clearly defined. This may lead to companies reconsidering their holding structures or relocating to other EU countries with less stringent requirements. This paper describes the problem, the relevance of the topic and the central research question regarding the effect of the abuse rules on Austria as a business location. Furthermore, the objectives and developments of the Parent-Subsidiary Directive and its implementation in Austria are presented. The functioning of the withholding tax exemption is also explained, particularly with regard to multinational companies. The anti-abuse regulations are also discussed. The aim of this paper is to examine the avoidance of abuse in the context of withholding tax in application of the Parent-Subsidiary Directive. Both the principles of EU law and the national implementation in Austria are analyzed. A special focus is placed on the interpretation of Art.1 Abs.2 of the Directive and the application of § 22 Abs.2 BAO, which standardizes the general prohibition of abuse. The work is based on key decisions of the European Court of Justice, in particular the judgments in the joined cases C-116/16 (“T Danmark”) and C-117/16 (“Y Denmark APS”) as well as C-6/16 (“Eqiom and Enka”), which specify the requirements for an abuse-proof structure and the criteria of economic substance. Based on specific facts, it is shown under which conditions an abuse of structuring within the meaning of the Parent-Subsidiary Directive is to be assumed and when a refund of capital gains tax is to be denied. The analysis comes to the conclusion that the combination of EU-law abuse control and national prohibition of abuse enables an effective defense against artificial structures, but at the same time requires a case-bycase examination taking into account economic substance.

Date of Award	2025
Original language	German (Austria)
Supervisor	Florian Preining (Supervisor)