Discover how the recent judgment of the Court of Justice of the European Union (CJEU) on December 19, 2024, can enable non-resident companies to recover withholdings on dividends in Spain. Reduce your tax costs with UHY Fay & Co.
The Court of Justice of the European Union (CJEU) has ruled that denying the refund of withholdings to non-resident companies operating at a loss violates the fundamental principles of the European Union. In this article, we analyze the impact of this judgment and how companies can benefit from it with the assistance of our experts in international tax advisory.
- Context of the CJEU Judgment
The CJEU has assessed whether the Non-Residents Income Tax (IRNR) regulations in Spain comply with EU law. The issue lies in the fact that foreign companies cannot recover the withholdings paid in Spain, even when operating at a loss, whereas Spanish companies can do so.
1.1 Difference in Tax Treatment
- Resident companies: can recover withholdings if they report losses.
- Non-resident companies: do not have access to this benefit, creating a competitive disadvantage.
1.2 Impact on the Free Movement of Capital
The ruling emphasizes that this difference in treatment discourages foreign investment, affecting the free movement of capital within the EU
- Key Points of the CJEU Ruling of December 19, 2024
The CJEU concluded that Spanish regulations constitute unjustified discrimination. It is based on previous cases such as Sofina (C-575/17) and ACC Silicones (C-572/20), reinforcing the principle of equal treatment in tax matters.
3. Benefits for Non-Resident Companies
The affected foreign companies can assess the feasibility of requesting a refund of the withholdings paid in those years in which they reported losses. This could result in a significant reduction in tax costs.
3.1. Who Can Claim?
- Non-resident companies that have paid withholdings (on dividends, interest, business activities, etc.) in Spain and
- That, in their country of origin, incurred losses during the fiscal period in which the withholding was paid.
3.2. Deadlines and Procedures
It is crucial to act before the expiration of the statute of limitations for the fiscal years. Our expert tax advisors recommend a detailed review to assess each case.
- How to Request a Refund of Withholdings in Spain
The process requires an analysis of the overall situation with the support of UHY Fay & Co.
4.1. Required Documentation
- Proof of losses in the country of origin.
- Withholding certificates in Spain.
- Argumentation based on CJEU case law.
4.2. Steps to Follow
- Viability analysis with our expert tax advisors in the field.
- Preparation of the required documentation.
- Submission of the application to the Spanish tax authorities.
- Follow-up of the procedure until a resolution is obtained.
Conclusion
The CJEU ruling opens the door for foreign companies to recover withholdings when operating at a loss. Acting in time can result in significant savings in tax costs.
If you need expert advice, UHY Fay & Co has a team specialized in international taxation and tax procedures. Contact us for more information.
Inmaculada Domecq
Partner Tax & Legal
idp@uhy-fay.com
Note: This article is for informational purposes and does not constitute legal advice. For specific cases, consult with our expert tax advisors.
