Taxation of Foreign Foundations in Light of EU Law

a) The article analyses why it is necessary to consider European law when national tax law is to test whether a foundation (i.e., an independent institution) domiciled in another EU/EEA country can be considered as an independent tax subject. In Denmark the qualification for tax purposes of a foreign foundation has so far been decided on the basis purely of national tax law. The article argues that it is necessary to consider European law in the testing because it creates a restriction on the freedom of establishment and capital movement if the foundation is not approved as the ‘beneficial owner’ of the income received by the foundation. Such restriction must be able to be justified on the grounds of compelling reasons, suitability and proportionality.

b) There has been a long-standing tradition in Denmark and undoubtedly also in many other member states, for tax law to be sceptic of the use by Danish taxpayers of a foundation domiciled abroad. Case law has gradually developed on the testing of whether a foreign foundation may be recognised as an independent entity for tax purposes or whether a taxpayer connected with Denmark, often the founder of the foundation, should be regarded as the correct recipient of the foundation’s income and thus pay tax on this income.

c) Tax authorities and courts have for a number of years developed and refined the national case law with regard to its requirements to foreign foundations, and these requirements have, to a very large extent, been defined to precisely match the requirements applying to foundations domiciled in Denmark. The underlying assumption is, probably, that by treating all foundations domiciled in Denmark and outside of Denmark completely equally, there is no risk of discrimination. A probable further assumption is the view that this is a purely national (here: Danish) matter.

d) This assumption has been easy to enforce as long as the foundation was in an exotic overseas location. It has, however, been applied uncritically to foundations domiciled in another EEA country, namely Liechtenstein, and in the most recent case law it has also been applied to a foundation domiciled in another EU country, namely the Netherlands. e) It seems as if decades of development of European law have passed by without this assumption having changed. The Court of Justice of the European Union’s avoir fiscal decision (case 270/83), according to which non-harmonised areas of tax law must also respect the basic EU freedoms, thus seems to have gone unnoticed. It also seems to have gone unnoticed that the European Court does not only ensure against discrimination, but also against restrictions, see Gebhard (case C-55/94).

e) The article demonstrates this claim by reviewing a recent decision by the Danish National Tax Tribunal, SKM 2015.458 LSK, which agreed with the viewpoint of the Danish tax authorities that a Danish founder of a foundation domiciled in the Netherlands must be regarded as the correct income recipient of a dividend of DKK 63 million (app. EUR 8.2 million) to the foundation from its subsidiary domiciled in Denmark. Thus, no testing was made of the case’s European legal aspects.