OS ECJ-TF 4/2017 on the Decision of the Court of Justice of the European Union of 9 February 2017 in X (Case C-283/15) ('Pro-Rata Personal Deductions'), Concerning Personal and Family Tax Benefits in Multi-State Situations

European Taxation, vol. 58, n. 4 (2018)

12 Pages Posted: 20 Aug 2020 Last revised: 17 Oct 2020

See all articles by João Félix Pinto Nogueira

João Félix Pinto Nogueira

International Bureau of Fiscal Documentation; University of Cape Town (UCT)

Francisco Alfredo Garcia Prats

Universitat de València

Werner C. Haslehner

Universite du Luxembourg

Volker Heydt

Independent

Eric Kemmeren

Tilburg University; Fiscal Institute Tilburg

Georg Kofler

Vienna University of Economics and Business - Institute for Austrian and International Tax Law

Michael Lang

Vienna University of Economics and Business

Jürgen Lüdicke

PriceWaterhouseCoopers LLP - PricewaterhouseCoopers GmbH

Pasquale Pistone

Vienna University of Economics and Business

Stella Raventos-Calvo

affiliation not provided to SSRN

Emmanuel Raingeard de la Blétière

Independent

Isabelle Richelle

Independent

Alexander Rust

Independent

Rupert Shiers

Independent

Date Written: February 22, 2018

Abstract

This article deals with the decision taken by the Court of Justice of the European Union in X (Case C-283/15), on 9 February 2017. In general terms, the Court followed the Opinion of Advocate General Wathelet of 7 September 2016.

The case concerned tax legislation permitting the deduction of "negative income" relating to a dwelling. The issue was whether the fundamental freedoms must be interpreted as precluding a Member State from refusing the benefit of that deduction in respect of a self-employed non-resident in circumstances in which that person receives 60% of his total income within that Member State, and 40% within a non-Member State. Therefore, he does not receive income that enables him to qualify for an equivalent right to deduct within the Member State where his dwelling is located.

Having recognized that the freedom of establishment applies to the case, the First Chamber confirmed the right of that person to a deduction of "negative income" relating to his dwelling. Subsequently, it held that a self-employed person can claim an equivalent right of deduction in any Member State of activity within which that person receives income, in proportion to the share of that income received within each Member State of activity.

A "Member State of activity" is any Member State that has the power to tax such income from the activities of a non-resident as is received within its territory, irrespective of where the activities are actually performed.

Finally, the Court stated that the fact that the non-resident taxpayer concerned receives part of his taxable income within a third country rather than a Member State is not relevant.

Keywords: Taxation, Tax law, European taxation

JEL Classification: K33, K34, F13, E62, D78, E62, F02, F23, F42, H20, H22, H23, H25, H26, H87, O19, O23, O24

Suggested Citation

Pinto Nogueira, João Félix and Garcia Prats, Francisco Alfredo and Haslehner, Werner Christof and Heydt, Volker and Kemmeren, Eric and Kofler, Georg and Lang, Michael and Lüdicke, Jürgen and Pistone, Pasquale and Raventos-Calvo, Stella and Raingeard de la Blétière, Emmanuel and Richelle, Isabelle and Rust, Alexander and Shiers, Rupert, OS ECJ-TF 4/2017 on the Decision of the Court of Justice of the European Union of 9 February 2017 in X (Case C-283/15) ('Pro-Rata Personal Deductions'), Concerning Personal and Family Tax Benefits in Multi-State Situations (February 22, 2018). European Taxation, vol. 58, n. 4 (2018) , Available at SSRN: https://ssrn.com/abstract=3644373 or http://dx.doi.org/10.2139/ssrn.3644373

João Félix Pinto Nogueira (Contact Author)

International Bureau of Fiscal Documentation ( email )

Rietlandpark, 301
Amsterdam, 1019 DW
Netherlands
+31205540100 (Phone)

HOME PAGE: http://https://www.ibfd.org/IBFD-Profiles/Jo-o-F-lix-Pinto-Nogueira

University of Cape Town (UCT) ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

Werner Christof Haslehner

Universite du Luxembourg ( email )

Luxembourg

Volker Heydt

Independent

Eric Kemmeren

Tilburg University ( email )

Warandelaan 2
Tilburg, Noord-Brabant 5037AB
Netherlands
+31.13.466.8129/2412 (Phone)
+31.13.466.3073 (Fax)

HOME PAGE: http://www.tilburguniversity.edu/webwijs/show/kemmeren-3.htm

Fiscal Institute Tilburg ( email )

P.O. Box 90153
Tilburg, 5000 LE
Netherlands
+31.13.466.8129/2412 (Phone)
+31.13.466.3073 (Fax)

HOME PAGE: http://www.tilburguniversity.edu/webwijs/show/kemmeren-3.htm

Georg Kofler

Vienna University of Economics and Business - Institute for Austrian and International Tax Law ( email )

Welthandelsplatz 1
Buildind D3
Vienna, VIenna 1020
Austria

Michael Lang

Vienna University of Economics and Business ( email )

Welthandelsplatz 1
Vienna, 1020
Austria

Jürgen Lüdicke

PriceWaterhouseCoopers LLP - PricewaterhouseCoopers GmbH ( email )

Wirtschaftsprüfungsgesellschaf
Alsterufer 1
Hamburg, D-20354
Germany

Pasquale Pistone

Vienna University of Economics and Business ( email )

Welthandelsplatz 1
Vienna, Wien 1020
Austria

Stella Raventos-Calvo

affiliation not provided to SSRN

Isabelle Richelle

Independent

Alexander Rust

Independent

Rupert Shiers

Independent

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