24.1.2009

Official Journal of the European Union

C 19/11

(Case C-437/08)

(2009/C 19/19)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Österreichische Salinen AG

Defendant: Finanzamt Linz

Questions referred

1.Does Community law preclude a national authority — in order to avoid discriminating against foreign equity holdings which, unlike domestic (Austrian) equity holdings, are not tax exempt under legislation until the size of the equity holding reaches 25 % (under present legislation 10 %) — from applying the credit method because the Austrian Verwaltungsgerichtshof (Administrative Court) has ruled that this outcome is closest to the (hypothetical) intention of the legislature but not simultaneously permitting a deduction to be carried forward to subsequent years or a tax credit to be given for a loss year with regard, firstly, to the corporation tax to be credited and, secondly, to the withholding tax to be credited?

1.1If the answer to the first question should be in the affirmative: Does Community law preclude a refusal to allow a deduction to be carried forward or a tax credit to be given in the case of non-member country dividends?