O Caso Denkavit France

Tributação dos Dividendos na Saída, Abordagem Pan-européia e Poder Impositivo do Estado da Fonte

Abstract

The articles 43 and 48 of the European Constitution forbid norms of internal law that, despite taxing the dividends paid to a non resident controller company, unburdens almost totally a resident controller, consisting in discrimination on the establishment freedom. These articles forbid national law that prescript, only for the non resident controller, the withholding taxation on the dividends paid by the resident controlled, even when a treaty on taxation, between the interested member State and another member State, that permits the mentioned withholding, prescripts the possibility to input to the tax owned to the “other” State the burden resulted from the mentioned national law, when the controller finds itself in a situation of impossibility, in this last State, to make the imputation allowed by the treaty.