Dansk kildebeskatning af udbytter: vurdering af retmæssig ejer og omgåelsesklausuler

Philip Guldager Jensen

Studenteropgave: Kandidatafhandlinger


This thesis contains an analysis of the Danish withholding tax on dividends in relation to conduit companies. It deals with the problem about treaty/directive shopping by taxpayers establishing a conduit to exploit the advantages of a double taxation convention or a directive. In Danish tax law dividends from a Danish com-pany to a foreign shareholder are subject to taxation unless the foreign shareholder is entitled to a tax ex-emption due to a double taxation convention with Denmark or due to the advantages of the parent-subsidiary directive. In this manner the interpretation is crucial in connection to both the term beneficial owner as stated in the OECD model tax convention with commentaries as well as the general anti-abuse rule in the EU parent-subsidiary directive. By using a juridical dogmatic method when analyzing the current Danish tax law on the subject, this thesis is based on the wording of the law supplemented with legislative history as well as relevant and current legal literature. In the first part the details about the Danish withholding tax on dividends is outlined, and a specific exam-ple of the tax effect of a structure with an interposed holding company in a favourable state is included. The next section searches for an interpretation of the beneficial owner requirements in the OECD model tax convention with commentary most recently updated in July 2014. This main part of the thesis includes an analysis of the most crucial international case law and, more importantly, the one Danish judgement from the high court and the rulings from the national tax tribunal. The last section studies the interpreta-tion of the Danish implementation of the general anti-abuse rule in the EU parent-subsidiary directive adopted in January 2015. In conclusion, the criteria for establishing that a company is a conduit in a Danish context are still inade-quate. The interpretation of the term beneficial owner by no means ends with the most recent updates of the OECD model tax convention. There are still many terms that need to be defined more accurately in order to be useful in practice in Danish case law. However, it is commendable for the interpretation that it is pointed out that the term must beinterpreted in relation to an international fiscal meaning. Additionally, the scope of the Danish anti-abuse rule in relation to the Danish double taxation agreements is uncertain. Relative to the Danish implementation of the anti-abuse provision for directives the conclusion must be that it is more restrictive for the taxpayer regarding getting a tax exemption based on the parent-subsidiary directive. The exact scope of the anti-abuse rule for directives, nonetheless, is not definitively established owing to the fact that several concepts and terms allow for interpretation for the tax authorities and Danish courts in accordance with EU law.

UddannelserCand.merc.aud Regnskab og Revision, (Kandidatuddannelse) Afsluttende afhandling
Antal sider74