I conflitti di classificazione del diritto tributario dell'Unione Europea: una rilettura della Direttiva sul regime fiscale comune applicabile alle società madri e figlie

Community law accepts the fact that the power to determine the connecting factors in taxation lies with the Member States. Thus, the Member States may decide whether tax will be levied at all, who is subject to tax, what type of income is taxed and the rate at which it will be taxed. Disparities result because different tax system apply independently of one another. Moreover, it is inherent to the sovereignty to tax that Member States may limit their tax jurisdiction (in other words, not levy tax) and that taxation in one Member States is not linked to taxation in another Member State. In this paper it has been indicated that Member State sovereignty will be jeopardized if disparities are characterized as prohibited restrictions. It is contended in the literature that the double taxation arising because of the (different) classification of a foreign (hybrid) entity is a restriction of the freedom of establishment. Some scholars are of the opinion that this kind of double taxation is a restriction of the freedom of movement and that Member State of participant has to recognize the tax classification of the entity by the state of establishment. In this paper it is argued that each Member State has the freedom to classify whichever taxpayer in whatever way, on the basis of its own tax rules. If this were not the case the Member States’ tax sovereignty would be at risk. The main purpose of this paper is to ascertain whether and to what extent the current wording of the Parent-Subsidiary Directive eliminates double taxation arising from cross-border distribution of profits in case of interposition of a hybrid entity between the parent company and the subsidiary. The main focus is placed on the scope of the Directive and its relation to the fundamental freedoms. The analysis is accompanied by a critical evaluation of the relevant case law of the ECJ. Based on the conducted research, in this paper I arrive to the conclusion that the P-S Directive itself does not provide for a satisfactory outcome to double taxation problems emerging in scenarios involving hybrid entities. However, double taxation affecting hybrid entities may nevertheless be resolved in some cases by recourse to the freedoms of movement.