El Impuesto sobre Sociedades en la Jurisprudencia del TJUE

La doctrina Marks & Spencer en materia de tributación de las pérdidas transnacionales de grupos de sociedades: avances y deficiencias del estado actual de la cuestión y pautas de futuro

Abstract

The present work has by object the analysis of the case law doctrine of the European Court of Justice (ECJ) concerning the taxation of Crossborder Losses of groups of companies. The purpose is to concretise the limits of the Community Law on the tax power of the Member States. In the light of the Case-Law of the ECJ on this matter, the work reaches three general conclusions:
1. First of all, the Sentence X Holding does not constitute a change of criterion concerning the Sentence Marks & Spencer (principle “per
element approach”). In this sense, is still present the question of whether the Spanish law is compatible with Community Law, while this national law in the Tax Consolidation System excludes deduction of the final losses incurred by its subsidiaries established abroad from its taxable profits.
2. Secondly, on the basis of that understanding, ECJ sets out the legal reasoning according to the concret substantive aspect which is object of controversy. In particular, from the perspective of the home State of the investment:
On the one hand, with occasion of “losses suffered by the subsidiaries abroad”, when it come unfavorable differences in treatment to Community
situations, the Court held the doctrine of Limited Compatibility: This  difference in treatment is a restriction of the right of establishment. A tax
sheme such as that is, as a general rule, compatible with Community Law because is justified in view of the need to safeguard the allocation of the power to impose taxes between the Member States and to prevent the risk of tax avoidance (Marks & Spencer, X Holding, OyAA, Lidl Belgium). Exceptionally, however, is incompatible with Community Law, when the internal tax system cannot be objectively justified or it is disproportionate (Marks & Spencer, Lidl Belgium).
On the other hand, regarding “costs relating to the holding”, when internal differences in treatment are unfavorable to Community situations, the ECJ held the doctrine of the Limited Incompatibility. According to that, those differences in treatment constitute restrictions to the freedom of establishment and/or free movement of capital. As a general rule, ECJ consider them incompatible with
the Community Law. Those cannot be justified in view of the need to safeguard the allocation of the power to impose taxes between the Member States and neither in view to prevent the risk of tax avoidance (Rewe, Steko, Bosal, Keller, Deutsche Shell). Exceptionally, however, is compatible with Community Law, when the internal tax system can not be objectively justified or it is disproportionate (Marks & Spencer, Lidl Belgium). Excepcionalmente, result compatible with Community Law some justified and proportionate restrictions (Glaxo Wellcome).
3. Finally, at Community level, Jurisprudence of ECJ suggests an uncertainty context to the national legislator. Taxation of losses suffered
by the subsidiaries abroad, and of costs relating to the holding, is of great practical importance for companies and of great revenue importance for the States.
It is time that secondary Community legislation resolve the open issues it poses the current situation. It surely cannot be right that the Court of Justice, “case by case”, has to take charge with building the legal framework relevant to Cross-border losses.