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New opportunities of refunds for Luxembourg funds - 26/06/2013


Positive decision regarding a Luxembourg SICAV

As detailed in our Operational Tax News dated 28 February 2012, the Swedish Administrative Court of Appeal decided on 15 February 2012 that the withholding tax on dividend distributions paid on Swedish shares to, notably and amongst other EU based investment funds under corporate forms, a Luxembourg SICAV was in violation with the EU principle of free movement of capital. As a consequence, all withholding tax were to be repaid to the claimants.

The Swedish Tax Authorities lodged an appeal against this decision.

On 20 May 2013, the Supreme Administrative Court decided not to grant leave to appeal. The judgements of the Administrative Court of Appeal are thus final.

Decision regarding Luxembourg FCP

Recently the Administrative Court of Appeal has rendered similar judgments for Luxembourg FCPs regarding repayment of withholding tax (in line with a previous decision back in 2011 as mentioned in our Operational Tax News dated 28 February 2012).

The Swedish Tax Authorities have lodged appeals against these decisions.

Impact for Luxembourg investment funds

In light of these decisions, Luxembourg investment funds (UCITS and non-UCITS as per our Operational Tax News dated 21 March 2013) should consider whether they have any Swedish withholding taxes that potentially could be recovered. Reclaims can be made during 2013 for withholding tax levied on dividend distributions as from 2008.

As a reminder, as mentioned in our Operational Tax News dated 15 February 2012, as from 1 January 2012 there has been a change in the legislation resulting in the abolition of withholding tax on dividend distributions paid to certain foreign fund undertakings that are resident within the EEA or in a country with which Sweden has a double tax treaty that includes a provision of exchange of information or with which Sweden has an agreement regarding exchange of information in tax matters.

We will keep you informed on any new developments in this regards.

If you have any queries regarding the above, please do not hesitate to contact us.

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