Kondej, Mikolaj
May a country tax a subsequent restructuring under the Merger Directive? / Mikolaj Kondej, Mateusz Wicher
Resumen.
The article concerns the compatibility with the merger directive of Polish regulations introduced as of 1 January 2022, according to which a restructuring (merger, demerger or exchange of shares) is not tax neutral for a given shareholder if it involves allotment of shares in exchange of shares which were obtained as a result of a prior restructuring. For the purpose of this analysis, the authors take a deep look at the nature of deferral provided in Article 8 of the merger directive and summarize the case law and the doctrine views. While they acknowledge many areas of dispute around the concept of the deferral, they conclude that irrespective of the approach adopted, taxation of shareholders solely because they exchange shares granted to them as a result of a previous restructuring is not in line with the directive. Regardless of the above, the authors also discuss whether Article 8(6) of the directive provides for a right of a Member State to tax gain which arose until the moment of the restructuring if, as a result of the restructuring, the taxing right under a double taxation treaty (DTT) is transferred to another Member State.
SOCIEDADES
EMPRESAS
CONCENTRACION
OPERACIONES SOCIETARIAS
IMPUESTOS
POLONIA
ARMONIZACION FISCAL
DERECHO COMUNITARIO EUROPEO
UNION EUROPEA
Wicher, Mateusz
EC Tax Review 0928-2750 [print] v. 32, issue 2, April 2023, p. 56-66
May a country tax a subsequent restructuring under the Merger Directive? / Mikolaj Kondej, Mateusz Wicher
Resumen.
The article concerns the compatibility with the merger directive of Polish regulations introduced as of 1 January 2022, according to which a restructuring (merger, demerger or exchange of shares) is not tax neutral for a given shareholder if it involves allotment of shares in exchange of shares which were obtained as a result of a prior restructuring. For the purpose of this analysis, the authors take a deep look at the nature of deferral provided in Article 8 of the merger directive and summarize the case law and the doctrine views. While they acknowledge many areas of dispute around the concept of the deferral, they conclude that irrespective of the approach adopted, taxation of shareholders solely because they exchange shares granted to them as a result of a previous restructuring is not in line with the directive. Regardless of the above, the authors also discuss whether Article 8(6) of the directive provides for a right of a Member State to tax gain which arose until the moment of the restructuring if, as a result of the restructuring, the taxing right under a double taxation treaty (DTT) is transferred to another Member State.
SOCIEDADES
EMPRESAS
CONCENTRACION
OPERACIONES SOCIETARIAS
IMPUESTOS
POLONIA
ARMONIZACION FISCAL
DERECHO COMUNITARIO EUROPEO
UNION EUROPEA
Wicher, Mateusz
EC Tax Review 0928-2750 [print] v. 32, issue 2, April 2023, p. 56-66