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Spanish National High Court Holds Burden of Proof on Tax Authority for Abusive EU Holding Structures — Orbitax Tax News & Alerts

According to recent reports, the Spanish National High Court issued an important decision on 25 May 2021 concerning the application of the withholding tax exemption on dividends under the EU Parent-Subsidiary Directive (PSD) and related anti-abuse rules in relation to EU holding structures. The case involved the payment of dividends by a Spanish company in 2009 and 2010 to a Luxembourg company wholly owned by a Canadian pension fund, for which the PSD exemption was claimed. The Spanish tax authority determined, however, that the Luxembourg company was only established in order to obtain a tax advantage and denied the exemption as per anti-abuse rules in force at the time, with the burden of proof placed on the taxpayer. Upon appeal, the tax authority's position was upheld by a lower court.

In its decision, the High Court overturned the decision of the lower court and the position of the tax authority. The High Court held that the burden of proof was on the tax authority to establish the existence of elements constituting abuse, and a general presumption of abuse may not be set.