The Dutch Anti-Base Erosion Rule: Recent Developments in the Context of Fraus Legis and EU Law

Abstract

Recently, the Dutch Supreme Court has raised several probing cases on article 10a of the Dutch Corporate Income Tax Act 1969 (CITA) (also known as the Dutch anti-base erosion rule) in a short period of time in the context of fraus legis. In one of these rulings the Dutch Supreme Court appears to be taking a remarkable path which in the authors’ view does not algin with the trias politica concept. Moreover, in literature many questions are raised on whether the Lexel ruling of the Court of Justice of the European Union has an impact on the sustainability of the Dutch anti-base erosion on which the Dutch Supreme Court finally referred preliminary questions on 2 September 2022. In this article the authors will provide the reader with the current state of affairs in relation to article 10a CITA – in particular in the context of fraus legis and EU law.