Fund Taxation Alert 2021-04

Finland – CJEU recognizes comparability of Luxembourg SICAV with Finnish contractual funds

Finland – CJEU recognizes comparability of Luxembourg SICAV with Finnish contractual funds

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Olivier Schneider

Partner, Financial Services Tax

KPMG in Luxembourg

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Decision

The CJEU held that unitholders of a Luxembourgian SICAV (UCITS) should be treated similar to those of a Finnish contractual fund (UCITS). Even though the decision does not address the specific situation of all withholding tax (WHT), per se, it addresses the comparability of a Luxembourg SICAV with a Finnish investment fund.

Background

The Finnish tax authorities are currently rejecting WHT reclaims filed by unlisted SICAVs. This is mainly because the Finnish Supreme Court, when applying the Aberdeen decision, considered that only listed SICAVs would be considered comparable to Finnish limited companies. The Finnish Supreme Court did not consider whether a SICAV, even if unlisted, could be comparable to a Finnish investment fund.

This situation could now change further to the decision rendered by the Court of Justice in the European Union (CJEU) in the case Veronsaajien oikeudenvalvontayksikkö (C-480/19) on the 29 April 2021.

Approach and rationale

The comparability of the Luxembourg SICAV and the Finnish investment fund in the CJEU’s decision was not based on the legal form of the respective funds, but on the similarity of the applicable regulations and tax principles. In this regard, both funds were covered by the UCITS directive and were classified as tax exempt for the same reasons (elimination of double taxation). Furthermore, the unitholders of both funds were in an objectively comparable position. Additionally, the income from both funds were regarded as capital income for Finnish income tax purposes, since the definition of capital income did not distinguish from other income received by a contractual and corporate form UCITS fund. Accordingly, the income received from the Luxembourgish SICAV was considered to be taxed similarly as the income received from the Finnish contractual based fund. The legal form of the Luxembourg based fund was irrelevant.

Consequences and recommendations for the next steps

This decision gives a clear indication that SICAVs whether listed or unlisted should be considered comparable to Finnish investment funds. Consequently, all unlisted SICAVs and other foreign corporate funds are advised to apply for a claim for adjustment regarding the negative decisions they have received concerning WHT reclaims. Beyond that all WHT claims that have been put on hold at the Finnish Tax Administration due to this case should be supplemented with additional references to the CJEU’s latest judgment. We also recommend continuing to file WHT reclaims in Finland not only for FCP funds and listed SICAVs but also for unlisted SICAVs.

A dedicated team of tax advisers and project management experts could support you to process WHT reclaims in Finland.

Contact

Olivier Schneider
Partner
+352 22 51 51 5504
olivier.schneider@kpmg.lu

 

Miroslava Svedova
Manager
+352 22 51 51 5662
miroslava.svedova@kpmg.lu