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Rozsudok Súdneho dvora (piata komora) zo 4. októbra 2001.
Athinaïki Zythopoiia AE proti Elleniko Dimosio.
Návrh na začatie prejudiciálneho konania Dioikitiko Protodikeio Athinon - Grécko.
Approximation of laws - Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States - Directive 90/435 - Exemption, in the Member State of the subsidiary, from withholding tax on profits distributed to the parent company - Withholding tax - Concept - Present case
(Council Directive 90/435, Art. 5(1))
$$There is a withholding tax, within the meaning of Article 5(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States - which provides that profits distributed by a subsidiary to its parent company holding a minimum of 25% of the capital of the subsidiary are to be exempt from withholding tax - where national legislation provides that, in the event of distribution of profits by a subsidiary (a public limited company or equivalent company) to its parent company, in order to determine the taxable income of the subsidiary its total net profits, including income which has been subject to special taxation entailing extinction of tax liability and non-taxable income, must be reincorporated into the basic taxable amount, when income falling within those two categories would not be taxable on the basis of the national legislation if they remained with the subsidiary and were not distributed to the parent company.
That is so because the chargeable event for taxation of that kind is the payment of dividends and the amount of tax is directly related to the size of the distribution.
( see paras 28 and 33 and operative part )