SKAT claims that the parent companies in question are so-called conduit companies because the amounts received, according to SKAT, have been passed on to group related entities in tax haven countries. The parent companies are consequently not the beneficial owners of the dividends or interest received, and the Danish subsidiaries should therefore have withheld tax at source in connection with such payments. As they failed to do so, SKAT is of the opinion that the Danish companies are liable for payment of the tax.
The number of cases is substantial, and the values involved are significant.
Until now, only two of the cases – one case involving dividend tax payments and another involving interest tax payments – have been settled by the danish courts.
Plesner has conducted both these cases for ISS A/S, and the court gave judgment in favour of ISS in both cases, ruling that no obligation to withhold tax at source existed.
The Danish Ministry of Taxation has not appealed against the judgments, and the outcome is therefore final.
The other beneficial owner cases are pending before the Danish National Tax Tribunal or the ordinary courts.
In six of the cases before the ordinary courts, the Danish High Court has referred preliminary questions to the Court of Justice of the European Union ("CJEU").
Advocate General Kokott has expressed the opinion that the companies should be supported in almost every issue, but in its judgments of 26 February 2019 the CJEU did not follow the Advocate General.
The test cases has been reopened at the High Courts and it is expected that the final hearings will take place in 2021.
In May 2020 the International Tax Review has awarded Plesner two "Impact Case Awards" for conducting the "beneficial owner" cases for the Court of Justice of the European Union.
In addition to these test cases, Plesner is also conducting a series of other beneficial owner cases.
In addition to the questions referred to the CJEU – which specifically concern the interpretation of the Parent-Subsidiary Directive and the Interest and Royalties Directive and their transposition into Danish law and of the freedom of establishment of the EC Treaty – the beneficial owner cases raise a wide range of additional questions.
These questions especially concern the interpretation of the relevant double taxation treaties, the significance of SKAT’s change in practice and the issue of whether the companies have acted negligently.