Discriminatory withholding taxation for foreign investment funds.

Sammanfattning: Cross-border investments made through investment funds are still surrounded by uncertainty, derived by the inexistence of harmonization of direct taxation in the European Union. The uncertainty surrounding the tax treatment, especially in cross-border situations, tend to trigger tax issued such as discrimination and restrictions to fundamental freedoms. More than 3000 funds have claimed a full refund on withholding tax (WHT) from distributed dividends. As the claims concern interpretation of the free movement of capital, both Denmark and Netherlands have admitted that there is no full clarity on how to assess whether the domestic tax treatment for foreign investment funds is discriminatory. The aim of the thesis is to examine in what terms of comparability the European Court of Justice has developed in its recent case law in order to determine whether the WHT on dividends is discriminatory for foreign investment funds. The thesis introduces the current legal situation in two countries, Denmark and the Netherlands. Both countries have been dealing with matter from administrative courts until to the end of Supreme Court. Furthermore, both countries have referred questions to the primary rulings.