Finland: Withholding tax refunds claimed by Luxembourg SICAV; potential refund opportunities (CJEU judgment)

A judgment holding that unit-holders of a Luxembourg SICAV are to be treated similar to those holding interests in a Finnish contractual fund

A judgment concerning withholding tax refunds claimed by Luxembourg SICAV

The Court of Justice of the European Union (CJEU) issued a judgment holding that unit-holders of a Luxembourg SICAV are to be treated in a manner similar to those holding interests in a Finnish contractual fund (UCITS).

The case is: Veronsaajien oikeudenvalvontayksikkö (C-480/19) (29 April 2021)

Summary

The Finnish tax authorities have rejected claims for refund of withholding tax filed by unlisted SICAVs, in part because the Finnish Supreme Court considered that only listed SICAVs would be considered to be 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.

The CJEU noted that the comparability of the Luxembourg SICAV to a Finnish investment fund 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, the CJEU found both funds were covered by the UCITS directive and were to be classified as exempt from tax for the same reason (that is, the elimination of double taxation).

Furthermore, the CJEU observed the unit-holders of both funds were in an objectively comparable position and that the income from both funds was 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 CJEU concluded that the income received from the Luxembourg SICAV to be taxed similarly as the income received from a Finnish contractual-based fund. The legal form of the Luxembourg based fund was noted to be irrelevant.

KPMG observation

While the decision does not address the specific situation for refunds of all withholding tax, it does address the comparability of a Luxembourg SICAV with a Finnish investment fund.

The decision thus provides a clear indication that SICAVs—whether listed or unlisted—must be considered comparable to Finnish investment funds. Consequently, all unlisted SICAVs and other foreign corporate funds need to consider filing a claim for refund for withholding tax.

All withholding tax refund claims that have been “on hold” by the Finnish tax administration are expected to be (or need to be) supplemented with additional references to the CJEU’s judgment in this case.

Read a May 2021 report prepared by the KPMG member firm in Luxembourg

 

 

The KPMG name and logo are trademarks used under license by the independent member firms of the KPMG global organization. KPMG International Limited is a private English company limited by guarantee and does not provide services to clients. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. For more information, contact KPMG's Federal Tax Legislative and Regulatory Services Group at: + 1 202 533 4366, 1801 K Street NW, Washington, DC 20006.