AURES Holdings a.s. (C-405/18) at the Intersection of Cross-Border Loss Relief, Corporate Exit Taxation and Dual Residency Mismatches

Abstract

This contribution examines the decision of the Court of Justice of the European Union (CJEU) of 27 February 2020 in Case C-405/18 AURES Holdings a.s. on the application of the Marks & Spencer final losses doctrine to dual resident companies that transfer their treaty residence (place of effective management) to another Member State. The CJEU applied a two-step comparability analysis based on Timac Agro and Bevola to exclude current not-subject-to-tax emigration losses (not linked to the ability-to-pay of the immigrated company) from its preferred approach to always take final losses into account somewhere in the internal market. The immigration state was not forced to apply its taxing powers asymmetrically over emigration losses to prevent a conflict with the principle of fiscal territoriality in exit tax cases and international tax practice against base erosion and profit shifting (BEPS). If the immigration state still sovereignly decides to take these losses into account pursuant to a bilateral tax treaty, Article 9(b) of the Anti-Tax Avoidance Directive (ATAD) on dual residency mismatches prevents dual loss utilization. ATAD, Aures, Bevola, comparability, conversion, exit tax, hybrid mismatch, final losses, POEM, Timac Agro.