Following a conclusion In the opinion of Advocate General (AG) Wattel, the question has arisen as to whether the urgent amendment to the fiscal unity for corporation tax purposes is actually necessary.
Emergency repair
The reason for the urgent amendment is a judgment handed down by the Court of Justice of the European Union on 22 February 2018. We describe this judgment in our article Emergency repair to the corporate tax group.
Although the judgement concerns an international situation, the emergency remedy also has a significant impact on purely Dutch situations. To give Dutch businesses sufficient opportunity to prepare for this, the emergency measure has been temporarily relaxed. See our article Relief for urgent repairs to corporate tax units.
The details of the emergency measure were announced on 6 June. It was then that the bill Emergency repair to the fiscal unit published. This proposal has yet to be debated by Parliament. However, the measures are due to come into force on the date they were announced: 25 October 2017, 11:00.
Wrong
In the judgment referred to above, the Court of Justice provided answers to the questions put by the Supreme Court. Pending those answers, the Supreme Court has stayed the proceedings. Now that the Court of Justice has ruled, those proceedings can, of course, be concluded.
It is in this context that the Advocate General has published his opinion. He concludes that the Supreme Court provided the Court of Appeal with incorrect information. Furthermore, the questions asked were incorrect. As a result, the answers are not useful for the ruling that the Supreme Court is required to deliver.
Among other things, from the judgment recently handed down by the Court of Justice Hornbach judgment The Advocate General concludes that the Supreme Court may rule that it is not necessary to rectify the fiscal unity.
In tax literature, calls are already being made for the government to withdraw the draft bill that has been tabled – the amendment to the corporate tax unit rule. We wholeheartedly agree with this, but expect that the government will wait for the Supreme Court’s judgement before doing so.