El anhelado reequilibrio en la carga de la prueba de la existencia de abuso en el reparto de dividendos

Abstract

This article sets out the important and recent doctrine established by the Supreme Court in relation to the correct interpretation of the burden of proof of the existence of abuse in the distribution of dividends. This doctrine considers that the Administration —and not the taxpayer— has the burden of proving the absence of valid economic reasons. This interpretation is necessary in order to be able to deny the exemption for dividends obtained by EU resident parent entities controlled by third country companies. This is an important milestone in a controversial area, which became more acute after the multifaceted judgments of the «Danish cases». With it the Supreme Court's own erroneous previous doctrine on this matter is considered to have been overcome and, furthermore, it seems that the Court of Justice's line of case law prior to the controversial Danish judgments has been recovered.