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on the one hand – these governance arrangements set out a final (definitive) withholding of German capital gains tax of 15 % on the dividends of the limited liability company (GmbH) irrespective of the size of the shareholding of a Japanese parent corporation,

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but – on the other hand – the restriction claimed by the applicant arising from the withholding tax on capital gains can only occur because the applicant holds at least 25 % of the distributing GmbH and is claiming a full refund of the German capital gains tax in addition to claiming a Japanese tax exemption amounting to 95 % of the dividends,

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so that the applicant consequently seeks full relief on dividends for the merger with the GmbH, similar to that in the internal market, as within the scope of Article 5 of Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6), as amended by Council Directive 2006/98/EC (2) of 20 November 2006 (OJ 2006 L 363, p. 129)?

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Does the final levying of German capital gains tax on the dividends pursuant to Paragraph 32(1)(2) of the KStG in conjunction with Article 10(2) of the DBA-Japan 1966 in the circumstances of the case constitute a restriction of the applicant’s free movement of capital caused by the Federal Republic of Germany, if

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on the one hand – the German tax on capital gains levied on the dividend can also be offset and refunded in the tax assessment of resident parent companies from 1 April 2009 onwards, and

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on the other hand – the applicant was able to fully offset the German tax on capital gains on the dividends against the Japanese corporate tax prior to 1 April 2009 in accordance with Article 23(2) of the DBA-Japan 1966,

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but since 1 April 2009 this has been unsuccessful solely because the applicant’s dividends from the GmbH are 95 % tax-exempt due to a newly introduced Japanese tax exemption?

(a)

Can the definitive levying of the German capital gains tax pursuant to Paragraph 32(1)(2) of the KStG in conjunction with Article 10(2) of the DBA-Japan 1966 be justified by overriding reasons of public interest in the form of an allocation of taxation rights for the dividend in accordance with Article 10(2) of the DBA-Japan 1966?

(b)

Can the definitive levying of the German capital gains tax be justified by the fact that the applicant cannot claim an exemption from withholding tax on capital gains in addition to the tax exemption on the dividends in Japan, by way of a double tax benefit?

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in addition to the presentation of a German tax certificate regarding the withholding of capital gains tax, the applicant must also specify in euro the amount of German capital gains tax that cannot be offset against Japanese corporate tax in Japan in the reference year of the dividends at issue, so that the refund can only be granted if the details from the applicant have been verified by the Bundeszentralamt für Steuern (Federal Central Tax Office, BZSt) or if these details have been confirmed by the BZSt by means of an exchange of information with the Japanese tax authorities,

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whereas a resident parent company, for the purpose of offsetting the capital gain tax in the German corporate income tax assessment, need only present a certificate from the German tax authorities concerning the withholding and payment of the capital gains tax?