The lawfulness of the exclusion of non resident group members from Dutch fiscal unities is now set to be tested following a reference from the Dutch Supreme Court. While the Dutch rules exclude from membership of a fiscal unity companies that do not pay Dutch corporation tax on their profits (rather than non residents) a long line of cases (e.g. Commerzbank, LankhorstHohorst, Bosal, the Thin Cap GLO etc) have shown that such distinctions which produce the same result as a residence test or are more likely to catch non residents are unlikely to concern the court. More interesting will be whether or not the fiscal unity rules themselves pass muster, particularly in a case of this complexity.
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