In 2003 and 2004, Axa Investment Managers distributed dividends to its German minority shareholder (Axa Konzern AG, which held 16% of the shares) and English minority shareholder (Axa UK PLC, which held 6.5% of the shares), which were subject to the withholding tax of Article 119 bis 2 of the French tax code.
The company Axa (French majority shareholder, which held 78% of the shares), acting on behalf of the foreign companies, filed a tax claim to obtain the refund of this withholding tax arguing that the French tax regime was contrary to EU law according to the decisions Denkavit(CJEU, 1st Ch., Dec. 14, 2006, No. C-170/05) and Amurta (CJEU, 1stCh., Nov. 8, 2007, No. C-379/05).
In a decision dated January 21, 2016, the French Administrative Supreme Court ruled that the taxpayer could not rely on these decisions and, consequently, these decisions did not constitute an “event” re-opening the deadline to file refund claims according to Articles L. 190 and R. 196-1 of the French book of tax procedures, in their version applicable to the case at hand.
Indeed, the French Administrative Supreme Court firstly pointed out that the Denkavit decision was only based on the freedom of establishment, which can be invoked only in the case where a parent company exercises a decisive influence over the conduct of its subsidiaries. In this respect, the Supreme Court pointed out that the German and English shareholders, as minority shareholders, did not exercise such an influence and, in addition, it could not be presumed that these foreign subsidiaries acted together with the French majority shareholder, as the involvement of each company had to be assessed separately.
In this decision, therefore, the French Administrative Supreme Court concluded that the answer provided by the CJEU related to the freedom of establishment could not justify that the deadline should be re-open on the basis of the free movement of capital.
Secondly, the French Administrative Supreme Court noted that the claimant cannot rely on the Amurta decision either, insofar as, on the one hand, the Amurta decision was about a Dutch legislation on the withholding tax and not about a French legislation, which did not reveal that Article 119 bis of the French tax code have infringed a superior rule of law and, on the other hand, the Amurta decision was not about the interpretation of a European directive showing its incorrect implementation under French law.
To conclude, although Articles L. 190 and R. 196-1 of the French book of tax procedures do no longer provide for the re-opening of the deadline to file refund claims, this decision confirms that the deadline to file refund claims must be interpreted in a very strict way and that, within this framework, the French Administrative Supreme Court is particularly demanding as regards taxpayers relying on decisions handed down by the CJEU.