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- Title
Steuerrechtliche Einkünftekorrektur wegen Ausgestaltung von Darlehen zwischen konzernangehörigen Gesellschaften mit Sitz in unterschiedlichen EU-Mitgliedsstaaten – (konkludente) Annahme eines „acte clair" bzw. eines „acte éclairé" auf Grundlage der EuGH-Entscheidung „Hornbach-Baumarkt"
- Abstract
The article deals with tax income adjustments due to loans between affiliated companies in different EU member states. It discusses how the vesting period for stock options is determined and the impact this has on taxation. It also points out that income from activities in third countries is covered by the US-Germany Double Taxation Agreement. The court is urged to conduct further investigations to clarify the right to taxation and possible rate reductions. The text describes a case in which a complainant is taking action against A S.R.L. The tax office denied the complainant the deduction of operating expenses for outstanding receivables against A S.R.L. The tax court initially granted the complaint, but the Federal Fiscal Court overturned this decision. The Federal Constitutional Court has overturned the judgment of the Federal Fiscal Court and referred the case back. The Federal Constitutional Court has determined that the final court of appeal is obliged to refer to the Court of Justice of the European Union if there is an unclear, interpretation-requiring, and decision-relevant question of Union law. The Federal Fiscal Court violated the principle of the lawful judge by affirming a clearly clarified legal situation without sufficient justification. The text also addresses the restriction of freedom of establishment and the unequal treatment of companies. The Federal Fiscal Court did not examine all aspects of this issue and did not take into account that there may be economic reasons for entering into a non-arm's length transaction. The judgment of the Federal Fiscal Court is incomprehensible, and it is unclear why no referral was made to clarify the differences and contradictions in relation to the "Hornbach-Baumarkt" decision.
- Subjects
COURT of Justice of the European Union; CONSTITUTIONAL courts; FEDERAL courts; JUDGES; LEGAL judgments; STOCK options
- Publication
FinanzRundschau, 2024, Vol 106, Issue 8, p391
- ISSN
2567-4765
- Publication type
Article
- DOI
10.9785/fr-2024-1060808