The Court of Appeal of Den Bosch, the Netherlands, awarded a Finnish investment fund a full refund of Dutch dividend tax withheld from dividends it received from investments in Dutch resident entities, in a decision issued on 9 March 2012. The fund had requested a refund of Dutch dividend withholding tax relating to its investments in accordance with the EU right to the free movement of capital, but this was initially rejected by the Dutch authorities. However, it was held by the Court of Appeal that as Dutch resident entities that are not subject to Dutch corporate income tax are entitled to reclaim Dutch dividend withholding tax, and as the Finnish fund in question was not subject to Finnish corporate income tax, it would be an un-justifiable restriction on the free movement of capital, as provided for under the EU treaties, for it not to be treated equally and accordingly also be permitted to a refund of Dutch dividend tax withheld from its investments.
It has been announced that the decision is to be appealed to the Dutch Supreme Court. In the event of the decision being upheld this may have beneficial implications for Irish domiciled funds.