Rita van Caster and Patrick van Caster v Finanzamt Essen-Süd.

• Jurisdiction: European Union
• Celex Number: 62012CJ0326
• ECLI: ECLI:EU:C:2014:2269
• Date: 09 October 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑326/12

JUDGMENT OF THE COURT (First Chamber)

9 October 2014 (*1 )

‛Reference for a preliminary ruling — Free movement of capital — Article 63 TFEU — Taxation of income from investment funds — Investment fund’s obligations to communicate and publish certain information — Flat-rate taxation of income from investment funds which do not comply with communication and publication obligations’

In Case C‑326/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Finanzgericht Düsseldorf (Germany), made by decision of 3 May 2012, received at the Court on 10 July 2012, in the proceedings

Rita van Caster,

Patrick van Caster

v

Finanzamt Essen-Süd,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, S. Rodin, A. Borg Barthet, E. Levits (Rapporteur) and M. Berger, Judges,

Advocate General: M. Wathelet,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 9 October 2013,

after considering the observations submitted on behalf of:

— Mrs and Mr van Caster, by V. Heidelbach, Rechtsanwalt,

— the Finanzamt Essen-Süd, by U. Weise, acting as Agent,

— the German Government, by T. Henze and A. Wiedmann, acting as Agents,

— the United Kingdom Government, by C. Murrell, acting as Agent, and by R. Hill, Barrister,

— the European Commission, by W. Roels and W. Mölls, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 November 2013,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 63 TFEU and 65 TFEU.

2 The request has been made in proceedings between Mrs van Caster and her son (‘the van Casters’), residing in Germany, and the Finanzamt Essen-Süd (‘the Finanzamt’), concerning the separate and uniform determination of the basis of assessment of their income from non-resident investment funds for the tax years 2004 to 2008.

German legal context

3 Section 1 (Paragraphs 1 to 10) of the Law on Investment Tax (Investmentsteuergesetz; ‘the InvStG’), in force from 2004, sets out common rules for holdings in domestic and foreign investments.

4 Paragraph 2(1) of the InvStG provides that income from distributed holdings, income equivalent to a distribution and interim profits are considered to be, with certain exceptions, income from investor capital.

5 Paragraph 5 of that law, in the version of 15 December 2003 (BGBl. 2003 I, p. 2676), is worded as follows: ‘(Basis of assessment) (1) Paragraphs 2 and 4 shall apply only if 1. for each income distribution in relation to a holding, the investment company informs investors, in the German language, of (a) the amount of the distribution (to at least four decimal places) (b) the amount of income distributed (to at least four decimal places) (c) the sums contained in the distribution, that is to say: (aa) the income of the previous years equivalent to a distribution, (bb) capital gains on exempt sales within the meaning of the first sentence of Paragraph 2(3), point 1, first sentence, (cc) income within the meaning of Paragraph 3, point 40 of the Income Tax Law [(Einkommensteuergesetz)], (dd) income within the meaning of Paragraph 8b(1) of the Corporation Tax Law, [(Körperschaftsteuergesetz)], (ee) capital gains on sales within the meaning of Paragraph 3, point 40 of the Income Tax Law, (ff) capital gains on sales within the meaning of Paragraph 8b(2) of the Corporation Tax Law, (gg) income within the meaning of the second sentence of Paragraph 2(3), point 1, provided that it is not income from capital within the meaning of Paragraph 20 of the Income Tax Law, (hh) capital gains on exempt sales within the meaning of Paragraph 2(3), point 2, (ii) income within the meaning of Paragraph 4(1), (jj) income within the meaning of Paragraph 4(2), for which there was no deduction under subparagraph 4, (kk) income within the meaning of Paragraph 4(2) which, by virtue of a double taxation convention, confers a right of set-off against the income or corporation tax of tax deemed to have been paid, (d) of the portion of the distribution conferring a right of set-off or repayment of the income tax on the capital within the meaning of (aa) Paragraph 7(1) and (2), (bb) Paragraph 7(3), (e) the amount of income tax on the capital to be set-off or repaid within the meaning of (aa) Paragraph 7(1) and (2), (bb) Paragraph 7(3), (f) the amount of foreign tax in respect of income within the meaning of Paragraph 4(2) included in the amounts distributed and (aa) imputable pursuant to Paragraph 34c(1) of the Income Tax Law or pursuant to a double taxation convention, (bb) deductible pursuant to Paragraph 34c(3) of the Income Tax Law if there was no deduction under Paragraph 4(4), (cc) deemed to have been paid pursuant to a double taxation convention. (g) the amount of the deduction for depreciation or diminution of substance pursuant to the first sentence of Paragraph 3(3), (h) the amount of the reduction in corporation tax claimed by the distributing company under Paragraph 37(3) of the Corporation Tax Law; 2. the investment company shall send to the investors, in the German language, for the income equivalent to a distribution, the information referred to in point 1 in respect of a holding in an investment, not later than four months after the end of the accounting year in which it is deemed to have been paid; 3. the investment company shall publish the information referred to in points 1 and 2, together with the annual report within the meaning of Paragraph 45(1) and Paragraph 122(1) and (2) of the Law on Investments [(Investmentgesetz)] in the electronic bulletin of official announcements; the information must be accompanied by a certificate issued by a person authorised to provide professional assistance pursuant to Paragraph 3 of the Law on the profession of tax advisor [(Steuerberatungsgesetz)], of an officially recognised audit agency or similar agency, confirming that the information was established in accordance with the rules of German tax law; paragraph 323 of the Commercial Code [(Handelsgesetzbuch)] shall apply, mutatis mutandis. If the statement of account is not published in the electronic bulletin of official announcements in accordance with the Law on Investments, the reference under which the statement of account is published in the German language must also be given; 4. the foreign investment company shall calculate and state, together with the redemption price, the total income deemed to have been paid after 31 December 1993 to the holder of units in foreign investments on which tax has not yet been paid; 5. the foreign investment company shall, at the request of the central federal tax office, provide comprehensive proof to that office, within three months, of the veracity of the information set out in points 1, 2 and 4. If the certificates are drawn up in a foreign language, a certified translation into German may be required. If the foreign investment company gives information of an incorrect amount, it must take account of the difference in the amount on its own initiative or where so requested by the federal finance office in the notice for the current year. If the information referred to in point 1(c) or (f) is not available, the income shall be taxed in accordance with the first sentence of Paragraph 2(1), and Paragraph 4 shall not apply. …’

6 Paragraph 6 of the InvStG, entitled ‘Taxation in the event of failure of notification’ provides, in the version in force from 9 December 2004 (BGBl. 2004 I, p. 3310): ‘If the requirements of Paragraph 5(1) are not fulfilled, the investor shall be taxed on the distributions of income from units, the interim profit and 70% of the capital gains arising from the difference between the first fixed redemption price in a calendar year and the last fixed redemption price in the same year; the tax shall relate to not less than 6% of the last fixed redemption price in a calendar year. If a redemption price is not fixed, the stock exchange or market price shall be used. …’

7 According to the information from the German Government, Paragraphs 5 and 6 of the InvStG have subsequently been amended several times: However, those amendments do not have any impact on the dispute in the main proceedings.

The main proceedings and the question referred

8 The van Casters own units in non-resident capital investment funds held on deposit with a Belgian bank.

9 From 2003, the income from those capital investments was uniformly and individually determined in respect of the van Casters and half of that income was imputed to each of them.

10 For the financial years 2003 to 2006, all the units held by the van Casters were either in so-called ‘black’ funds, the taxation of which, until 2003, was governed by Paragraph 18(3) of the Law on the Sale of Foreign Investment Units and on the Taxation of Income from Foreign Investment Units (Gesetz über den Vertrieb ausländischer...