Ar Lietuvos Respublikos pelno mokesčio įstatyme įtvirtinta dividendų apmokestinimo tvarka prieštarauja Europos Bendrijos teisei?

Abstract

The article analyses the problem of tax discrimination of the so-called "foreign dividends". The Lithuanian Law on Profit Tax treats differently the dividends which are distributed to a foreign company (shareholder), on the one hand, and the dividends distributed to a Lithuanian company (shareholder), on the other hand, in favour to the latter dividends. The same differentiation applies to the dividends which are received by a Lithuanian shareholder from a foreign company, on the one hand, and the dividends which are received from a Lithuanian company, on the other. Such a differentiation of dividends, depending on the nationality of a shareholder or the nationality of a company distributing the dividends, creates the serious restrictions to the free movement of capital and is in an obvious conflict with the concept of European internal market. Therefore it is suggested that such dividend taxation rules, when "foreign dividends" are treated in a less favourable manner than the "national dividends", are in a potential violation of acquis communautaire. The author argues that such "foreign dividends" shall be treated for tax purposes in the same manner as "national dividends". In support to his position the author analyzes the relevant provisions of the EC Treaty related to the free movement of capital and illustrates his arguments with a recent jurisprudence of the European Court of Justice. In his conclusions the author notes that the article covers only a small part of a "big problem", i.e., there could be many more Lithuanian tax rules which may be disputed under the fundamental freedom provisions of the EC Treaty. This is so because not only those national tax law provisions which differentiate taxpayers depending on the place where their capital is invested, but also the provisions which differentiate the tax payers depending on their place of residence, may be disputed in the light of the EC Treaty provisions. The latter problem, i. e., the application of different tax rules to residents and non-residents, is of particular importance and complexity, because the national tax laws of almost all European countries recognise such a differentiation (for tax purposes) between resident and non-resident. However, this is often not a case under the European Community law, because such a differentiation may constitute to the indirect discrimination of a foreign national, or it may amount to the illegal restriction of the fundamental freedoms of the EC Treaty. Therefore the Lithuanian taxation rules, even if they are legal and "innocent" from the point of view of national tax law, in all cases shall also be examined from the perspective of the European Community law.