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Case C-440/08: Judgment of the Court (First Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — F. Gielen v Staatssecretaris van Financiën (Direct taxation — Article 43 EC — Non-resident taxable person — Business operator — Right to a self-employed person’s deduction — Hours test — Discrimination between resident and non-resident taxable persons — Option to be treated as a resident taxable person)
ECLI:EU:UNKNOWN:62008CA0440
62008CA0440
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22.5.2010
Official Journal of the European Union
C 134/6
(Case C-440/08) (<span class="super">1</span>)
(Direct taxation - Article 43 EC - Non-resident taxable person - Business operator - Right to a self-employed person’s deduction - Hours test - Discrimination between resident and non-resident taxable persons - Option to be treated as a resident taxable person)
2010/C 134/09
Language of the case: Dutch
Referring court
Parties to the main proceedings
Applicant: F. Gielen
Defendant: Staatssecretaris van Financiën
Re:
Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 43 EC — National legislation granting self-employed business operators the right to deduct a flat-rate amount from their profits provided that they have devoted at least 1 225 hours per calendar year to the activities of the business — No account taken, solely in the case of a non-resident taxpayer, of hours devoted to an undertaking established in another Member State
Operative part of the judgment
Article 49 TFEU precludes national legislation which, in relation to the granting of a tax advantage, such as the self-employed person’s deduction at issue in the main proceedings, is discriminatory towards non-resident taxable persons, even though those taxable persons may opt for the regime applicable to resident taxable persons in order to benefit from that tax advantage.
(<span class="super">1</span>) OJ C 327, 20.12.2008.