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Case C-318/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Société d’investissement pour l’agriculture tropicale SA (SIAT) v État belge (Freedom to provide services — Tax legislation — Deduction as business expenses of expenses incurred as payment for the provision of services — Expenses incurred in relation to a service provider established in another Member State in which that provider is not subject to tax on income or is subject there to a tax regime which is appreciably more advantageous — Deductibility conditional upon the provision of proof of the genuine and proper nature of the services and the normal nature of the related payments — Obstacle — Justification — Combating tax evasion and avoidance — Effectiveness of fiscal supervision — Balanced allocation between Member States of the power to impose taxes — Proportionality)
ECLI:EU:UNKNOWN:62010CA0318
62010CA0318
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Valentina R., lawyer
22.9.2012
Official Journal of the European Union
C 287/2
(Case C-318/10) (<span class="super">1</span>)
(Freedom to provide services - Tax legislation - Deduction as business expenses of expenses incurred as payment for the provision of services - Expenses incurred in relation to a service provider established in another Member State in which that provider is not subject to tax on income or is subject there to a tax regime which is appreciably more advantageous - Deductibility conditional upon the provision of proof of the genuine and proper nature of the services and the normal nature of the related payments - Obstacle - Justification - Combating tax evasion and avoidance - Effectiveness of fiscal supervision - Balanced allocation between Member States of the power to impose taxes - Proportionality)
2012/C 287/03
Language of the case: French
Referring court
Parties to the main proceedings
Applicant: Société d’investissement pour l’agriculture tropicale SA (SIAT)
Defendant: État belge
Re:
Reference for a preliminary ruling — Cour de cassation — Interpretation of Article 49 EC — Tax legislation allowing the deduction of business expenses incurred by a resident taxpayer, but not allowing the deduction of such expenses if the taxpayer resides or is established in another Member State in which that taxpayer is not subject to any tax on income or is subject there to a tax regime which is appreciably more advantageous — Restriction on the freedom to provide services
Operative part of the judgment
Article 49 EC must be interpreted as precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which payments made by a resident taxpayer to a non-resident company for supplies or services are not to be regarded as deductible business expenses where the non-resident company is not subject, in the Member State of establishment, to tax on income or is subject, as regards the relevant income, to a tax regime which is appreciably more advantageous than the applicable regime in the former Member State, unless the taxpayer proves that such payments relate to genuine and proper transactions and do not exceed the normal limits, whereas, under the general rule, such payments are to be regarded as deductible business expenses if they are necessary for acquiring or retaining taxable income and if the taxpayer demonstrates the authenticity and amount of those expenses.
* Language of the case: French.