The directive matriu-filial is subject to any tax, direct or indirect, to the societat matriu pels beneficis distribuïts per la seva filial.

The Court of Justice of the European Union (CJEU) understands that the priority application of the deduction per dividends in relation to the three deductions that have a time limit is contrary to the directive matriu-filial.

The Belgian legal order provided for a deduction regime applicable to dividend percentages for a parent of the subsidiary company based on the incorporation of the tax base of l’import percebut and the subsequent deduction of fins at 95% of dividend. In theory, in principle, only 5% of the dividend distribution is directly taxed.

The deduction not applied in an exercici is to transfer the exercicis següents sense temporal limitation, but the application of that deduction is a priority in relation to any national deduction, fins i tot for that it is a deduction tract the application is limited in the temps. In practice, this rule of priority for making the deduction of the excess deductible to have the effect of reducing or eliminating it from the impossible base. I, in those cases, will be the private taxpayer of the total or partial approval of three crèdits fiscals. Això supposes that, indirectly, it is increasing the tax on the dividend over the 5% statute.

For this reason, it has been raised in the ECJ whether a rule such as the one described is in opposition to the parent-subsidiary directive.

In its judgment of December 19, 2019, in Case C-389/18, the ECJ has concluded as follows:

(A) The combination (i) of the described scheme of taxation of dividends received from a subsidiary, with (ii) the order of application of the deductions, together with (iii) the time limitation of the possibility of applying other deductions other than dividend-based, may cause the parent company to receive dividends the loss of other tax credits established by national law.

(B) Under these conditions, the obtaining of dividends is not neutral by the parent company, even if the dividends are not directly taxed.

Accordingly, the court concludes that the said regulation is contrary to the principle of neutrality provided for in the parent-subsidiary directive.