The present E-Alert intends to inform you about positive developments concerning withholding tax (WHT) refund opportunities for non-listed UCITS SICAVs.
In September 2014, the Finnish Supreme Administrative Court (SAC) ruled that a Finnish investment fund and a Luxemburg SICAV could be tax-neutrally merged, because the UCITS-compliant SICAV was considered as an investment fund from a tax perspective. According to recent tax literature, this ruling can be interpreted so that all UCITS-compliant investment funds should be comparable to Finnish investment funds.
Finnish investment funds cannot be established as SICAVs. Currently the Tax Administration compares foreign SICAVs solely to Finnish limited liability companies based on the Aberdeen decision (C-303/07), in which the Court of Justice of the European Union (CJEU) ruled that a Luxembourg SICAV is comparable to a Finnish limited liability company. As the exemption from dividend taxation is limited to domestic limited liability companies whose shares are publicly traded, the Tax Administration has granted refund of WHT only to listed SICAVs.
In the Aberdeen Case, the CJEU did not examine whether a SICAV is comparable to the Finnish tax exempt investment funds. Since there has been no court ruling on the comparability between a Finnish investment fund and a SICAV, the Finnish tax authorities have rejected the claims for refund of WHT filed by non-listed SICAVs. Following the recent SAC ruling, at least UCITS-compliant SICAVs should be comparable to Finnish tax-exempt investment funds and taxation of dividends paid to foreign SICAVs restricts the free movement of capital provided by Article 63 of the Treaty on the Functioning of the European Union.
KPMG Luxembourg is pleased to assist UCITS SICAVs with filing WHT reclaims in Finland. We also recommend that non-listed UCITS SICAVs whose WHT reclaims have previously been rejected by the Finnish Tax Administration now file a claim for adjustment.
For further information, please do not hesitate to contact us.
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