Most tax controversies arise as a result of tax assessments or reassessments.
Besides the traditional issues resulting from taxpayers challenging tax assessment notices, tax litigation in Luxembourg recently saw an increase in cases arising from exchange of information queries from foreign tax administrations. Since the Berlioz case (C 682-15) and the subsequent change of the Luxembourg tax law, the Luxembourg tax administration (LTA) has to verify the purpose and relevance of the inquiry (eg, no fishing expedition). As a result, cases are regularly brought forward to the courts to assess the relevance of the exchange of information requests (eg, decisions of the Administrative Court of 24 May 2022 and the Administrative Tribunal of 18 May 2022).
Next to the aforementioned cases, the most common cases on direct taxes refer to the application of Luxembourg anti-abuse provisions (abus de droit), which are more frequently used by the LTA to challenge a taxpayer’s position. In this field, topics such as hidden dividend distributions and managers’ or directors’ joint and several liability for the payment of taxes constitute the main areas of tax disputes.
Other common issues are requests for an exceptional remission of tax debt, domestic participation exemptions, fiscal unity, treaty benefits or interpretations and ex officio taxation.
Luxembourg tax disputes mostly involve personal income taxes (generally regarding deduction of expenses/costs and requests for exceptional remittance), dividend withholding tax and corporate income taxes.
Tax disputes may be mitigated by entering into advance tax agreements (ATAs) or advance pricing agreements (APAs) with the Luxembourg direct tax authorities (contrary to other European countries, the Luxembourg VAT authorities do not issue ATAs). ATAs or APAs may provide for legal certainty by determining the future tax liability of taxpayers.
In 2015, Luxembourg introduced a legislative framework for the tax ruling procedure. Each request for a tax ruling is processed by a committee composed of between four to six tax civil servants. The committee provides a final binding answer within a timeframe of generally two to three months after the payment of an administrative fee ranging between EUR3,000 and EUR10,000 (depending on the complexity of the file). Rulings are binding for a period of five years.
On 28 March 2023, the Luxembourg government released the bill of Law No 8186 (New Procedure Bill). The bill introduces the possibility to request bilateral or multilateral APAs. The bilateral or multilateral APAs will be entered into between the competent tax authorities of the involved jurisdictions. The administrative fee will range between EUR10,000 and EUR20,000 depending on the complexity of the request and the volume of work.
After the decrease of the number of filed rulings in previous years following the LuxLeaks and the Panama Papers, 2022 saw a slight increase to 67 APAs/ATAs filed (most probably due to the recent major changes of tax laws – and uncertainties deriving thereof – under the ATAD packages). Out of these requests, 46 APAs/ATAs have been approved in 2022.
There has been a steady increase in tax litigation over the last ten years (up almost 51% between 2013 and 2021 according to the LTA in its 2022 annual report). This trend looks to continue with the new provisions and tools available to the administration to combat harmful tax practices and tax avoidance schemes, and a potential increase in reassessments following an audit. Further, the drop in the filing of ATAs/APAs provides for less fiscal certainty and will de facto lead to increased tax controversies.
Regarding the BEPS recommendations to combat tax avoidance, it should be noted that Luxembourg implemented several EU directives that will have a direct impact on the amount of tax disputes.
Anti-Tax Avoidance Directive
The implementation of the Anti-Tax Avoidance Directive (EU) 2016/1164 (ATAD 1), introducing, inter alia, interest limitation and general anti-abuse rules as of 1 January 2019, and the Anti-Tax Avoidance Directive (EU) 2017/952 (ATAD 2), as regards hybrid mismatches with third countries as of 1 January 2020, should lead to an increase in the number of tax disputes in Luxembourg. Although covered by circulars issued by the LTA, new topics such as the interest deduction limitation rule or CFC rules will most certainly lead to deviating interpretations between the LTA and the taxpayers.
The implementation of Council Directive (EU) 2018/822 on mandatory disclosure rules (DAC6) into Luxembourg law, as of 25 March 2020, created great uncertainty among practitioners and taxpayers due to its broad, though vague, scope (especially as to the interpretation of the hallmarks). Until 4 May 2022, the LTA had issued very limited guidance on the interpretation of the hallmarks, which de facto would have led to an increase of tax litigation. With the recent FAQ issued on 4 May 2022, a more foreseeable explanation has been provided to taxpayers in the interpretation of key definitions.
ATAD 3/Pillar One/Pillar Two
It is to be expected that the contemplated implementation of (i) the proposal for a Council Directive laying down rules to prevent the misuse of shell entities (ATAD 3 proposal), (ii) the “Pillar One” proposal foreseeing taxing rights on profits realised by MNE groups in so-called market jurisdictions, and the already adopted “Pillar Two” EU Directive providing for a global minimum corporate income tax at the rate of 15% will lead to more heated debates between the tax administrations and their relevant taxpayers.
Before 1 January 2023, the official deadline for Luxembourg companies to file their annual tax returns was on 31 March of each following year. Since the Budget law for 2023, the filing deadline has been pushed to 31 December of the following year (applicable to tax returns as from the fiscal year 2022).
The late filing of tax returns can be subject to a penalty of 10% of the tax due and a fine of up to EUR25,000. In practice, for the first offence, the fine is usually EUR800 for individuals and EUR1,200 for companies, respectively.
However, the head of the LTA has recently announced that, since the entry into force of this new law, the LTA would not wait long before issuing fines to entities that did not file their tax returns by 31 December of each relevant year.
In the event of a challenge of a tax assessment issued by the LTA, the lodging of a claim does not suspend the obligation to pay the taxes due. Also, the late payment of taxes triggers an automatic default interest of 0.6% per month, so it is usually recommended (when possible) to pay the taxes due upfront, even where the tax assessment is challenged.
Luxembourg law does not, however, impose a preliminary payment or guarantee as a prerequisite to file a claim.
Luxembourg companies are audited on a discretionary basis. However, in recent years, tax audits have been initiated by the Luxembourg tax authorities due to the exchange of information procedure implemented by the respective Directives on Administrative Cooperation (DAC). Also, companies held by individual tax residents are usually under scrutiny by the LTA.
Tax audits may be (i) initiated in the context of an investigation linked to tax returns filed for one or several tax years or (ii) freely initiated by the LTA for tax surveillance purposes. For companies, tax audits often arise, in practice, from the absence, delay or wrongful preparation of account books or tax returns. Once initiated, Luxembourg law does not provide for any specific deadline with regard to the duration of a tax audit.
In the case of direct taxes, the limitation period of the tax audit is five years, starting from the end of the fiscal year in which the tax claim arose.
In the case of concealment, with or without fraudulent intent, the limitation period is extended to ten years.
The powers of the LTA are broad when it comes to tax audits. In practice, the LTA will monitor whether taxpayers comply with their bookkeeping obligations such as the regular and correct preparation of annual accounts, record keeping of supporting documents or the use of accurate values. The LTA has the right and obligation to request information from taxpayers directly.
Tax audits may be performed remotely by requesting specific documents from taxpayers or “on-site” (which is the preferred route). Luxembourg taxpayers have to provide the requested information in a timely manner. If they do not, the LTA may make its request to any third parties which are likely to hold the relevant information.
The LTA may also proceed to “on-site” inspections of taxpayers’ premises. As a general principle, such “on-site” inspections should occur every three years for large companies. Alongside these “scheduled” inspections, the LTA may perform special “on-site” inspections for taxpayers which are considered “high risk”.
Documents requested by the tax authorities may be given in person or sent by mail.
In principle, the general tax position of a taxpayer is being scrutinised.
Furthermore, with Luxembourg being a global hub for international investments, most transactions bear a cross-border factor. As such, some of the main areas for civil servants include the potential existence of permanent establishments, potential hidden dividend distributions and the deductibility of operating costs. Given the high number of intra-group financings conducted via Luxembourg companies, compliance with the transfer pricing rules is another key area which triggers the attention of the Luxembourg tax authorities.
Since the court ruling from the European Court of Justice in relation to the Danish UBO cases, a focus has been placed on the substance requirements of Luxembourg companies acting as “conduits” within international structures.
Within the framework of the DACs, Luxembourg has exchanged an average of 450,000 files with foreign tax administrations over the last few years, and received approximately 100,000 foreign reports in return.
The automatic exchange of tax information, and in particular the Common Reporting Standard (CRS), led to an increase of tax audits initiated by the LTA.
In the course of a tax audit, it is important to assess the background and purpose of the audit. This preliminary assessment phase is relevant in order to provide the appropriate and correct information to the tax authorities.
Although not mandatory, it is recommended that a tax adviser assists in order to streamline the communication with the LTA. The tax adviser may schedule a meeting with the civil servant in charge of the tax audit and negotiate a settlement.
Although direct taxes and indirect taxes are supervised by two segregated tax administrations, the administrative claim phase is now harmonised between the two public bodies.
Pursuant to paragraph 228 of the Luxembourg General Tax Law (LGTL), Luxembourg taxpayers may file an administrative claim against their tax assessments issued by the LTA within three months from the notification of the tax assessment. The receipt of the notification is assumed to have occurred three business days after its issuance by the LTA. Such a claim is to be directly addressed to the director (préposé) of the competent tax office and be motivated by sound reasons. The New Procedure Bill specifies which information should be provided in the administrative claim (eg, identification of the assessment, object of the claim). In the event where the mandatory information is not provided, the claim would not be accepted.
Taxpayers may also address a claim to the direct tax authorities, as per paragraph 94 of the LGTL, regarding a specific matter. The filing of an administrative claim on the basis of paragraph 94 of the LGTL does not, contrary to the filing on the grounds of paragraph 228 of the LGTL, grant the taxpayer the right to initiate a judicial litigation in the absence of an answer of the director of the competent tax office.
If the director of the competent tax office rejects the administrative claim, the taxpayer may file a judicial claim within three months from the notification of the rejection.
Article 76 (3) of the Luxembourg VAT law provides for the right to file a claim also within three months from receipt of the VAT assessment notice. If the VAT office rejects the administrative claim, the claim is automatically redirected to the director of the indirect tax authority.
If the administrative claim is rejected by the director of the VAT administration, the taxpayer may file a judicial claim in front of civil courts, also within three months from the notification of the rejection.
In Luxembourg, claims regarding direct taxes or indirect taxes are not lodged in front of the same jurisdictions. In both cases, however, the director of the relevant tax administration is not compelled by law to respond within a specific maximum timeframe.
If the director of the direct tax administration does not respond within six months from the filing of the administrative claim, the taxpayer is entitled to assume that the absence of an answer is equivalent to a negative decision. The taxpayer may then initiate a judicial claim before the Luxembourg Administrative Tribunal. There is no specific deadline for the filing of the judicial claim if the administrative claim remains unanswered.
The New Procedure Bill proposes to introduce a 12-month period for the taxpayer to initiate a judicial litigation if the claim has not been answered within 6 months from its filing.
If the administrative claim remains unanswered six months after the filing of such a claim, the taxpayer may file a judicial claim in front of the District Court. No specific deadline applies.
For Luxembourg tax purposes, the judicial phase is considered a second level of jurisdiction. Indeed, in order to be able to initiate the judicial phase, the taxpayer must first have had a claim rejected in the administrative phase, by the relevant tax authorities.
For direct tax purposes only, judicial claims must be filed with the Administrative Tribunal. As a general rule, litigation procedures before the administrative courts must, in principle, be initiated by a Luxembourg lawyer.
However, for procedures relating to direct taxes, no specific formalities are required with regard to the representation of the litigants or the filing of the initiation of the litigation procedure. In other words, the taxpayer can represent itself or be represented by a tax adviser, who does not need to be a qualified lawyer.
Luxembourg civil courts are competent for the judicial litigations in relation to VAT and other indirect taxes. Conversely to direct tax procedures before Luxembourg administrative courts, indirect tax procedures brought before civil courts must be initiated by the filing of a writ of summons by a Luxembourg lawyer. The writ of summons must be notified to the counterparty by a bailiff in a timely manner.
After the filing of the judicial claim, the registry of the Administrative Court shall forward the judicial claim to the competent tax office.
The procedure before the Administrative Court begins with an exchange of arguments between the parties, which occurs in a limited number of briefs. The first brief occurs within a period of three months, and every subsequent brief occurs within a period of one month. After the exchange of the final subsequent briefs by each party, the Administrative Tribunal fixes oral hearings.
The decision of the Administrative Tribunal should occur approximately one year following the initiation of the judicial tax litigation.
In indirect tax court proceedings, the dates for the exchange of briefs and the oral hearing(s) are set by the District Court. The decision of the District Court should occur approximately two years after the filing of the claim.
As the Luxembourg judicial tax procedure is written and based on the adversarial principle, the provision and use of written evidence is essential.
Although uncommon, taxpayers and the tax administration may request witness evidence from a third party to consolidate their case. Where the tax administration requires a third party to act as a witness during the procedure, a party may only refuse under specific conditions (eg, family member or professional secrecy obligations).
Pursuant to the LGTL, witnesses may only provide the relevant information in writing. In cases where written evidence would not suffice in the making of a decision, the court may request an expert witness in order to verify certain open points (eg, valuation of a real estate asset).
Under Luxembourg law, as a general principle, the burden of proof lies with the party who claims for the execution of an obligation.
For tax purposes, the burden of proof remains with the taxpayer who claims a reduction of their taxable income. If the LTA’s assessment results in an increase in the taxpayer’s taxable income, the burden of proof lies with the LTA.
However, within judicial procedures relating to direct tax matters, the burden of proof is borne by the direct tax authorities.
The strategic options which are to be considered in the course of judicial tax litigations should be determined and monitored on a case-by-case basis.
Although not a source of law, Luxembourg tax case law has considerable authority. Furthermore, since most of the Luxembourg legal texts are of foreign origin, practitioners attach great importance to the study of foreign case law. More specifically, Luxembourg tax law has been strongly influenced by German tax law as a result of the German occupation during WWII. As a result, Luxembourg case law often refers to German court decisions in tax matters and follows the same views.
With regard to transfer pricing rules, the Luxembourg Income Tax Law (LITL) expressly refers to the OECD transfer pricing guidelines as an official source of interpretation. Similarly, the LITL also refers to the EU directives and OECD BEPS reports when it comes to the interpretation of hybrid mismatches or CFC rules.
Last but not least, ECJ decisions are also used as an official source of interpretation for domestic courts.
Following the decision of the Administrative Tribunal or the District Court, taxpayers may file an appeal within a period of 40 days following the notification of the decision of the lower courts. While the decisions of the Administrative Tribunal may be challenged before the Administrative Court, appeals against the decisions of the District Court may be filed before the Court of Appeal with the necessary intervention of a bailiff.
Based on unofficial sources (annual MEETINCS conferences, speaker Mr Georges Simon), taxpayers have a higher chance of success (even if only partially) in front of higher courts in contrast to proceedings held in front of lower courts.
From the perspective of the LTA, except in “cases of principle”, it generally accepts the decisions rendered by the lower courts.
Decisions of the Administrative Court of Appeal are not subject to a pourvoi en cassation. However, taxpayers may submit a pourvoi en cassation in front of the Court of Cassation against decisions of the Civil Court of Appeal.
For direct tax matters, the tax appeal procedure is identical to the procedure before the Administrative Tribunal. There is a wide range of arguments that can be raised during the tax appeal procedure.
The brief of the defendant must be filed with the registry of the Administrative Court of Appeal who communicates the claim to the parties within one month. The claimant may reply to the first brief within a month. The same deadline applies to the defendant following the notification of the first brief of the claimant.
The stages of the indirect tax appeal procedure before the Civil Court of Appeal are identical to the procedure applicable before the District Courts.
The Administrative Court of Appeal is composed of five judges and contains one unique panel of three judges.
The Civil Court of Appeal has a specific chamber for tax-related matters composed of three professional magistrates, being a president and two counsels.
The Court of Cassation is composed of one president and four permanent counsels. When the Court of Cassation overturns the decision of the Civil Court of Appeal, the case is sent back before the same Court of Appeal that ruled in the first case.
Luxembourg implemented the EU Directive on tax dispute resolution mechanisms on 20 December 2019. The mutual agreement procedure applies to any disputes relating to Luxembourg income tax, withholding tax, municipal business tax and wealth tax for all financial years following 2018.
EU-resident taxpayers can file claims to the competent authority (direct tax authorities in Luxembourg) relating to the EU Arbitration Convention and double tax treaties entered into between member states.
Taxpayers may file a claim with the competent tax authority within three years from the notification of the tax assessment.
Upon the filing of a claim, if the competent tax authority does not answer the case within six months from the filing, the claim may be resolved via the mutual agreement procedure within two years from the filing. The dispute is resolved by a commission composed of a judge assisted by independent persons and, on the other side, competent tax officials. The commission shall provide a resolution within a fixed period of six months. The resolution of the commission is binding for the tax authorities.
The mutual agreement procedure may be initiated in parallel to the traditional judicial procedures.
Since 2003, it has been possible for any private person or company to reach out to the Luxembourg Ombudsman (either by written request or even orally) to file a claim against the LTA. This is especially the case when the taxpayer considers itself unfairly treated by the LTAs or when the administration acted in breach of its public mission.
For the year 2022, the Ombudsman intervened in approximately 27 cases for direct tax matters.
Remittance of Taxes
The director of direct taxes is empowered to grant a total or partial remission of taxes whose collection would be unfair, considering the particularity of the situation in which the taxpayer finds itself (objective or subjective severity). Situations must be assessed on a case-by-case basis.
There are two kinds of fairness:
The application for a remission of taxes does not challenge the legality of the tax assessment, but merely invokes considerations of equity. A challenge on the content of the tax assessment itself falls under litigation proceedings.
See 1.3 Avoidance of Tax Controversies.
See 1.3 Avoidance of Tax Controversies.
See 6.2 Settlement of Tax Disputes by Means of ADR.
See 6.2 Settlement of Tax Disputes by Means of ADR.
Administrative Tax Offences
The LTA may issue additional tax assessments in cases where the taxpayer did not comply with the applicable legal obligations (eg, absence or late filing of tax returns). In such cases, the LTA may impose either lump sum fines or apply interest on the due amount. The LTA may also impose administrative fines for non-criminal infringements of the tax law.
In the context of the taxation process, the LTA may impose individual fines of up to EUR25,000. Where the law allows the granting of tax benefits or reliefs, specific conditions may be imposed on taxpayers. The infringement of these conditions may be subject to a fine of up to EUR2,500, even if the taxpayer did not trigger any benefit from such infringement.
In addition, as per the circular LG - A No 67 issued on 28 July 2021 by the Luxembourg tax authorities (Circular No 67), taxpayers may be subject to fines for the following infringements:
It is important to note that the fine issued by the LTA must be proportional to the infringement committed by the taxpayer.
Criminal Tax Offences
Since 2017, tax fraud and aggravated tax fraud have been considered as primary offences for anti-money laundering purposes.
As per Circular No 67, taxpayers may be punished for the following tax-related criminal offences.
In criminal proceedings, a taxpayer may only be sentenced for tax fraud if it has been proved that the taxes evaded were effectively due. The relationship between the administrative and criminal procedure is marked by the necessity to determine whether the taxpayer was subject to fiscal obligations. A criminal judge within a tax offence procedure must first wait for the decision of the administrative judge determining whether the defrauded taxes were due or not.
If the LTA suspects that a taxpayer has committed a tax-related offence, it may initiate a criminal tax procedure by transmitting the file to the public prosecutor. After the transmission, the public prosecutor conducts an investigation.
See 4.2 Procedure of Judicial Tax Litigation.
Under the LITL, there is no reduction of potential fines if the taxpayer proceeds with an upfront payment of the additional tax assessment. Late payment of taxes due is subject to a late payment interest of 0.6% per month.
On a case-by-case basis, and upon substantiated requests only, the director of the relevant tax administrations may decide to increase or reduce a fine.
Under Luxembourg law, taxpayers involved in a criminal tax trial may not benefit from any plea bargain by entering into an agreement with the public prosecutor in order to stop or prevent such a trial.
Either the taxpayer or the public prosecutor may file an appeal before the Court of Appeal against a decision of the Criminal Court related to a criminal tax offence. The deadline for the filing of the appeal ends 40 days following the notification of the decision of the Criminal Court.
As a result of an audit or a reassessment notice, the LTA may transfer the case to another authority (judicial authority, public prosecutor, etc). In 2022, the direct tax administration transmitted 45 cases to the relevant public bodies in the framework of inter-administrative and judicial co-operation.
Regarding tax litigations, there has been an increase of case laws referring to artificial cross-border transactions challenged by the LTA under the general anti-abuse rule (GAAR). However, the Luxembourg tax courts have set boundaries and more detailed rules for determining whether a transaction is artificial.
Recently, the Administrative Tribunal issued a decision in relation to an exchange of information request of the Belgian tax authorities, which was motivated by the infringement of the GAAR by a cross-border structure using a Luxembourg “conduit” company. It is to be expected that the GAAR will give rise to additional administrative litigation (though rarely to criminal offences).
Where a tax assessment or tax adjustment triggers a double taxation, it is common to initiate a domestic litigation procedure and the mutual agreement procedure mechanism under the applicable double tax treaty.
Since the amendment of the domestic GAAR through the implementation of ATAD 1, Luxembourg tax authorities should not ignore any misuse of forms and institutions of law (ie, an arrangement) which has been carried out primarily for achieving a tax advantage and which is not commercially genuine. An arrangement is considered as “not genuine” if it has not been put into place for valid commercial reasons which reflect economic reality. The GAAR may apply to cross-border situations covered by double tax treaties.
The rationale behind the principal purpose test (PPT) lies in denying the benefit of a double tax treaty to a taxpayer if such a benefit was one of the main motivations for entering into an arrangement. Luxembourg opted for the discretionary relief clause enabling taxpayers to request the LTA to grant a treaty benefit if such a benefit would have been granted to the taxpayer in the absence of the concerned arrangement.
The denial of a treaty benefit on the grounds of the PPT should be analysed by the LTA on a case-by-case basis. It should be noted that the PPT applies in parallel to the GAAR and therefore adds an additional layer of complexity with regard to the application of anti-abuse rules.
It is expected that the interpretation of the PPT will trigger additional litigation matters in Luxembourg.
Luxembourg embedded the arm’s length principle, deriving from Article 9 of the OECD Model Convention, in Articles 56 and 56 bis of the LITL. Moreover, the mentioned articles reflect the spirit set out in BEPS Actions 8–10, such as the concept of comparability analysis and a general anti-abuse rule that allows the LTA to disregard a transaction that has been made without any valid commercial or business justification.
The LTA issued Circular No 56/1-56 bis/1 on 27 December 2016, which provides further guidance with regard to substance and transfer pricing requirements in line with the OECD guidelines. As a result, international transfer pricing adjustments can, from a Luxembourg standpoint, be challenged under domestic tax courts if not compliant with the OECD transfer pricing guidelines.
While APAs traditionally constituted a good mechanism for mitigating transfer pricing matters, since the LuxLeaks affair, the committee in charge of the advance pricing agreements procedure, as mentioned in 1.3 Avoidance of Tax Controversies, has adopted more restrictive conditions for granting APAs to taxpayers. It is estimated that only one in four APA requests is agreed on by the ruling committee.
The New Procedure Bill proposes to introduce bilateral and multilateral APAs.
Given that Luxembourg companies are often used for international tax structuring purposes, cross-border dividend and interest payments between associated enterprises are a focus of the LTA.
In view of the recent amendments to Luxembourg domestic law made in order to comply with the latest OECD BEPS guidelines (eg, GAAR and PPT), both withholding tax and transfer pricing issues trigger, or will trigger in the near future, additional litigation in Luxembourg.
Further, given that Luxembourg shares its borders with four countries and has a large number of cross-border workers from France, Germany and Belgium, arbitration for the taxation of teleworkers applies frequently with these respective countries. This topic was heavily discussed and negotiated with the foreign tax administrations and relevant ministries at the beginning of the COVID-19 pandemic due to multiple lockdowns and official work-from-home recommendations for cross-border commuters.
There are currently several ongoing state aid disputes involving tax rulings granted by the LTA in favour of Luxembourg companies.
On 12 May 2021, the CJEU ruled on the Engie case (cases T-516/18 and T-525/18) which follows the decision of the European (EU) Commission of 20 June 2018 claiming that the State of Luxembourg granted a selective advantage to an entity. In a nutshell, the EU Commission claimed that the LTA had granted a state aid by issuing several tax rulings in relation to intra-group financing between Luxembourg entities of the Engie group. The rulings of the LTA confirmed that accrued but unpaid expenses under a convertible loan were deductible without being included in the taxable income of the holder of the loan. The EU Commission argued the following.
On the same date, the CJEU also ruled on the Amazon case (cases T 816/17 and T 318/18). This case involves a Luxembourg partnership (the SCS) being fully held by US companies of the Amazon group and its subsidiary, a Luxembourg operating company (the OpCo). The SCS granted the use of certain IP rights to the OpCo which in return paid royalties to the SCS. The LTA had confirmed in its ruling the arm’s length nature of such royalty payments and its determination via the transactional net margin method (TNMM). In its decision dated 4 October 2017, the EU Commission claimed that the use of the TNMM method resulted in excessive royalty payments and that the taxable basis of OpCo was hence “artificially reduced”. The EU Commission based its arguments on the fact that the following errors resulted in a false calculation:
The CJEU stated in its judgement of 12 May 2021 that the EU Commission failed to demonstrate the existence of methodological errors and the granting of a selective advantage.
Besides, the Huhtamäki case involving a Luxembourg company is still being investigated by the EU Commission. In that case, the EU Commission claims that the LTA issued tax rulings which confirmed that the Luxembourg company of the group would be making an arm’s length profit margin on its financing activities and could deduct fictitious interest payments made under interest-free loans.
On 3 October 2019, the Luxembourg company requested the EU Commission to provide non-confidential versions of the tax rulings and the list of the recipients of the tax rulings communicated by Luxembourg. The EU Commission rejected this request in Decision C(2019) 9417 final dated 18 December 2019 on the grounds that the documents fell under the general presumption of confidentiality. On 2 March 2022, the CJEU issued a judgment which annulled the Decision C(2019) 9417 final on the basis that the arguments of the decision of the CJEU were not valid.
On 8 November 2022, the CJEU finally ruled on the Fiat case (T-755/15 and T-759/15) which follows the decision of the EU Commission of 21 October 2015 claiming that the LTA granted a selective advantage to Fiat Chrysler Finance Europe S.à r.l. (FCF) via a tax ruling.
FCF carried out (i) financing and treasury activities for the benefit of other European entities of the Fiat group and (ii) shareholding activities. FCF’s remuneration for its financing activities had been determined on the basis of a transfer pricing report by using the TNMM. The remuneration consisted in a:
Accordingly, the equity of FCF had been segmented and different rates were applied in order to calculate the return on capital. In addition, the equity used for its shareholding activities had not been considered for the calculation of the return on capital. The above-mentioned remuneration was endorsed by a tax ruling issued by the Luxembourg tax authorities.
The EU Commission argued that the terms of the application of the TNMM were incorrect as the entirety of FCF’s capital should have been multiplied by a unique interest rate (ie, the capital should not have been segmented) in order for the remuneration to be at arm’s length. FCF and Luxembourg contested the decision of the EU Commission.
On 24 September 2019, the EU General Court dismissed the actions of FCF and Luxembourg and agreed with the decision of the EU Commission by stating that the entirety of FCF’s capital should be considered for the calculation of the arm’s length remuneration. FCF and Ireland lodged an appeal against the judgment of the EU General Court.
On 8 November 2022, the CJEU annulled the judgment of the EU General Court on the grounds that a selective advantage may only be determined if compared with the “tax system normally applicable in the Member State concerned” and not assessed on a “hypothetical tax system”. As the remuneration is deemed to be at arm’s length under the Luxembourg transfer pricing rules, no selective advantage was granted.
State aid disputes involving Luxembourg companies often originate from the initiation of a formal investigation procedure by the EU Commission pursuant to Article 108(2) TFEU, which requests information from the Luxembourg state. In the cases mentioned under 9.1 State Aid Disputes Involving Taxes, the Luxembourg state brought an action requesting the annulment of the decisions of the EU Commission.
In the cases mentioned in 9.1 State Aid Disputes Involving Taxes, both Engie and Amazon brought an action requesting the annulment of the respective decisions of the EU Commission and took the role of applicant in the judicial procedures.
In the context of state aid disputes involving Luxembourg structures, there are rarely, if any, litigation procedures brought against the Luxembourg state invoking extra-contractual civil liability.
Within the framework of the introduction of the MLI on 1 August 2019 in domestic law, Luxembourg has been guided in its choices by a policy of prudence, opting, on the one hand, for provisions that are in line with its current treaty policy and, on the other hand, for provisions introducing minimum standards that are mandatory but can be adopted in a flexible manner.
As for the mandatory provisions, Luxembourg has chosen the options that best suit its contractual policy.
For arbitration matters, Luxembourg opted for the mandatory binding arbitration rule in Article 19 of the Luxembourg MLI law.
This mandatory binding arbitration rule states that in cases of arbitration procedure initiated on the basis of the mutual agreement procedure provided for by the respective double tax treaties, if the taxpayer considers that the decision resulting from such a procedure may not be in line with the applicable laws, or the case has not been resolved within a period of two years, the case should be deferred to an impartial arbitration panel upon the request of the relevant taxpayer.
There are currently no provisions under DTTs or the MLI law which limit or restrict the access to arbitration for tax disputes.
Pursuant to Article 23 (1) of the MLI law, Luxembourg opted for the baseball arbitration procedure.
Although the reason behind choosing the baseball procedure was not explicitly mentioned in the draft bill, it can be assumed that this choice was motivated by the desire to promote quick outcomes for arbitration cases by reducing time and costs compared to the independent opinion procedure. The baseball procedure is consistent with the existing options under DTTs and the Arbitration Convention.
Luxembourg, being an EU member state, followed the trends in international tax arbitration made by the OECD by introducing in its domestic law on 20 December 2019 Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms.
At present, there is no publicly available information regarding the use of the recent legal instruments for tax dispute resolutions.
On 1 July 2021, the OECD released a statement addressing the two elements of the BEPS 2.0 project, being (i) Pillar One providing for the re-allocation of taxation rights on profits of multinational groups (MNEs) to market jurisdictions and (ii) Pillar Two establishing a minimum tax rate for MNEs.
On 22 December 2021, the EU Commission issued a proposal for a Council Directive on ensuring a global minimum level of taxation for multinational groups in the Union in order to implement the OECD Pillar Two in the EU. On 16 December 2022 the EU Council adopted the Pillar Two Directive. As per Article 56 of the Directive, the provisions shall be implemented into the domestic laws of the member states by 31 December 2023 and shall apply as of 1 January 2024. At the current stage, the EU Commission has not issued a draft directive for the implementation of Pillar One.
As MNEs often use Luxembourg holding or financing companies as gateways to European market jurisdictions, the implementation of Pillar One and Two should be monitored in order to avoid any adverse consequences on the MNE structures.
Given the complexity of the taxation mechanisms under OECD Pillar One and Two, their implementation may result in uncertainty for states and taxpayers. In particular, there is a risk that taxpayers are unduly subject to multiple taxation in several states and that jurisdictions wrongly apply the taxation rules. As a result, it is to be expected that the implementation of these mechanisms will lead to an increase of tax disputes.
As mentioned above, Pillar One provides for a re-allocation of the taxing rights to market jurisdictions. For this purpose, two categories of profits shall be allocated to market jurisdictions:
The Blueprint on Pillar One dated 14 October 2020 intends to provide for tax certainty by effective dispute prevention and resolution mechanisms. As the determination of Amount A should be the main source of disputes, the provisions of Pillar One foresee the following dispute resolution procedure.
As mentioned above, MNEs should benefit from dispute prevention and resolution mechanisms which ensure tax certainty under Pillar One. However, given the current climate with regard to ATAs/APAs as mentioned in 1.3 Avoidance of Tax Controversies, it should be clarified to what extent the LTA will grant early tax certainty to MNEs. The directive implementing Pillar One should provide further clarification in this regard.
The Blueprint for Pillar Two and the directive implementing Pillar Two do not provide for tax dispute resolution mechanisms. However, the Blueprint foresees that taxpayers may rely on the dispute resolution mechanisms provided by tax treaties.
As per Article 18 (2) of the MLI, the LTA may publish, via the European Commission, an anonymised summary of its decisions mentioning the legal issue, the facts, the date, the relevant fiscal years, the legal basis, the business sector and the final decision.
However, the LTA and, if applicable, the foreign tax authorities may publish the entire decision with the consent of the relevant taxpayer. Before the publication of the decision, the LTA must notify the relevant taxpayer. Upon receipt of the notification, the taxpayer then has 60 days to request that the LTA not publish any information relating to a commercial, industrial or professional secret, or a commercial procedure, or which would be contrary to the public order.
Under the MLI law, there are no obligations to publish the decisions taken by the Arbitration Commission.
While the tax dispute resolution mechanism under the MAP Directive applies exclusively to tax disputes deriving from the application of DTTs entered into between EU member states, the mechanism under the MLI applies to issues arising from the application or interpretation of DTTs entered into by states that opted for the same options under the MLI. Thus, the choice of the mechanism is determined on a case-by-case basis.
Regarding double tax disputes involving the EU member states that implemented the MLI, taxpayers may choose between a procedure under the MLI or the MAP.
Given that tax disputes arising in Luxembourg usually involve foreign investors or shareholders, corporate taxpayers generally involve their local tax adviser in order to initiate and co-ordinate the international tax arbitration procedure.
In administrative litigation proceedings relating to direct tax claims, taxpayers are not obliged to act through a bailiff in order to file a claim or an appeal before the Administrative Tribunal or the Administrative Court of Appeal. Accordingly, the costs arising from such administrative direct tax procedures remain low.
Conversely to administrative tax procedures, judicial claims relating to indirect taxes must be initiated by means of a writ of summons filed by a Luxembourg lawyer and notified to the counterparty by a bailiff. Taxpayers must be represented by a Luxembourg lawyer in front of the judicial court, which triggers further fees. Payable amounts imposed by the courts are due upon the notification of their decision. The courts may require that one of the parties pays a guarantee in advance of the decision.
The Luxembourg civil procedure law provides that certain costs arising from the judicial procedure may be attributed to one of the parties of the procedure. In practice, the procedure costs are borne by the party that loses the case. Legal costs arising from the mandate of a lawyer may only be partially attributed to the unsuccessful party.
Luxembourg law does not provide for any indemnities in the event where the court decides that the initial additional tax assessment issued by the LTA is null and void.
Under Luxembourg law, no court fees are due if a taxpayer opts to use any alternative dispute resolution mechanisms.
There are no official statistics regarding the number of pending tax court cases in Luxembourg.
Based on the annual reports from the direct tax administration, during 2019, the direct tax administration registered 1,635 claims filed by taxpayers against tax assessments. Approximately 251 direct tax claims resulted in the introduction of an administrative claim before the Administrative Tribunal. In 2020, the number of claims lodged dropped to 193, which is only due to the suspension of the deadlines as an extraordinary measure against the COVID-19 pandemic. Surprisingly, 177 claims have been introduced before the Administrative Tribunal in 2021. In 2022, 206 direct tax claims were introduced before the Administrative Tribunal and 69 before the Administrative Court.
The tax administration stresses that the cases are increasingly complex and involved various issues relating to domestic and European topics, tax assessments, joint payment of taxes and exchange of information.
With regard to indirect taxes, the VAT administration registered 268 claims against VAT assessments and 912 claims against additional VAT assessments during 2019. During the same year, taxpayers assigned the VAT administration before the civil courts in 25 cases. According to the VAT administration’s statistics, in the vast majority of disputes between the taxpayer and the VAT administration, the courts essentially confirmed the VAT administration’s position.
In 2020, the VAT administration registered 998 claims, where 304 related to claims against a VAT assessment and 694 were claims against administrative penalties. Within the same year, 41 claims were lodged in front of the civil courts against decisions from the VAT administration.
In 2021, the VAT administration registered 1,583 claims, of which 310 were filed against VAT assessment notices and 1,273 against administrative penalties.
In 2022, the VAT administration registered 1,660 claims, of which 340 were filed against VAT assessment notices and 1,320 against administrative penalties. Taxpayers assigned the VAT administration before the civil courts in 27 cases.
Statistics regarding the outcome of litigation procedures are not published in Luxembourg.
Based on unofficial sources (annual MEETINCS conference, speaker Mr Georges Simon), for 2021, 29% of the Administrative Tribunal’s decisions were in favour of the taxpayer (either fully for 23% or partially for 6%), while 49% of the decisions were unfavourable to the taxpayer.
Regarding the higher courts, a total of 54% of the Administrative Court’s decisions were in favour of the taxpayer (with 28% fully and 26% partially), while 46% of the decisions were unfavourable to the taxpayer.
When it comes to procedural matters, meeting the deadlines provided by the law remains one of the main considerations. With Luxembourg being a global hub for international investments, investors are usually residing in foreign jurisdictions.
Given that the claims and the writs of summons must be sent via registered mail or bailiff to the respective courts or counterparties, postal delays should be taken into consideration for the meeting of deadlines. However, litigants residing in foreign jurisdictions may appoint local legal counsel in order to co-ordinate the litigation procedure.
Further, given the large number of international groups using Luxembourg companies as a gateway to Europe, tax litigation procedures usually involve cross-border cash flows between linked entities residing in different jurisdictions. Such cases result in international tax issues which require close monitoring and co-ordination between the involved entities and their respective legal counsels.
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Domestic tax controversy, encompassing both (i) objections against assessments or hierarchical appeals against other individual decisions and (ii) subsequent appeals before the courts, continues to increase in volume. In 2022, for the first time, the administrative tribunal (first instance court competent for litigation on direct taxes) and the administrative court (appeal court) issued more than 200 judgments dealing with tax matters.
An analysis of the topics addressed shows both the prevalence of certain subjects and the extension of tax controversy to new areas. This increased volume, variety and complexity of tax controversy also implies longer procedures, which itself presents additional challenges.
Starting with an assessment of Luxembourg tax litigation statistics in Q1 2023, this article will then examine the core issues and conclude with commentary on certain developments in litigation strategies and procedures.
Overview of Volume of Litigation
In Q1 2023, the administrative tribunal issued nearly 50 judgments in tax matters. In appeal, the administrative court issued seven decisions.
It is striking that close to 25% of the cases in first instance were found to be inadmissible. This can be partly attributed to appeals on exchange of information brought by targeted taxpayers, which by now are consistently found inadmissible based on certain judgments of the Court of Justice of the European Union (CJEU). The CJEU requires member states to allow the holder of information to appeal an injunction to provide information, which the tax authorities then pass on to the tax authority of the requesting member state. However, it is not mandatory to grant such a right of appeal to the targeted taxpayer. Several cases were still pending while awaiting a ruling from the CJEU, and these are now being dismissed. This logically increases the inadmissibility rate.
However, it is important to note that there are other reasons why cases may be found inadmissible, such as failure to meet the appeal deadline or failure by the taxpayer to be properly represented in court. Such errors can have costly consequences, as the taxpayer loses its right to challenge the tax due. It is therefore important to seek proper advice before challenging a tax assessment or other decision of the tax authorities.
The ratio of cases won by the tax authorities is also striking: 55% of Q1 2023 cases. Combined with the inadmissible cases, this means the taxpayer only wins (at least in part) 20% of cases. While this statistic may appear to reinforce the administrative tribunal’s perceived inclination towards siding with the tax authorities, another factor plays a role: taxpayers too often file appeals in cases that are likely to be unsuccessful. Excluding inadmissible cases, more than half of the cases seemed destined for defeat, based on the available facts and the tribunal’s analysis.
Besides contributing to the tribunal’s backlog and ensuing delays, this situation raises questions about the diligence of some taxpayers who, in some cases, fail to provide satisfactory evidence for their claims or try reversing the consequences of prior negligence.
The Key Topics in Luxembourg Tax Controversy
The following topics have dominated Luxembourg tax case law in recent months:
Withholding tax on proceeds from a repurchase and cancellation of a class of shares
As an alternative to dividends, taxpayers – notably in private equity structures – often resort to the repurchase and cancellation of a class of shares, which has traditionally been assimilated to a so-called “partial liquidation”. Contrary to dividends, there is no withholding tax on liquidation proceeds. While that treatment is usually accepted by the tax authorities provided certain features are satisfied, such as implementing different economic rights for the various classes and implementing the classes from the outset (or promptly after incorporation), at least two cases in recent years led to a challenge.
In one of these cases, the tribunal issued in January 2023 a judgment finding that the repurchase of a class of shares should in principle trigger a capital gain for the shareholder and, as a result, the proceed should not be subject to withholding tax. However, this conclusion is subject to (i) the repurchase price being at arm’s length and (ii) the transaction not being abusive.
The arm’s length requirement is not surprising but is nonetheless likely to raise interesting questions on the valuation of the shares being repurchased. Taxpayers should pay attention to the drafting of the profit allocation provisions in the articles of association. In the case addressed by the tribunal, there were no different economic rights except in case of repurchase of an entire class of shares, meaning it can be questioned whether a third party would really purchase the shares (approximately 5% of the total share capital) at the maximum redemption price.
Because the tribunal seems to anticipate that part, if not most, of the redemption price should be reclassified as hidden dividend due to being in excess of the fair market value, the question of abuse was not addressed. A further case is pending and may provide additional guidance. The tribunal’s approach at least suggests that repurchasing a share class rather than distributing a dividend is not necessarily abusive and can be justified.
Exchange of information
The volume of cases on exchange of information is not surprising given the regular use of both the EU directive on administrative cooperation in tax matters and the bilateral tax treaties by other jurisdictions, mostly EU member states.
When admissible, the cases revolve around the notion of the “foreseeable relevance” of the requested information. When the Luxembourg tax authorities receive a request to exchange information, they first need to verify (i) whether the information is foreseeably relevant in view of the tax purposes indicated by the requesting state and (ii) whether they already have the information. In practice, while the tax authorities pay lip service to that check, they appear to readily issue injunctions to the (potential) information holder to provide the information. It is this injunction that is then challenged in court, as the request from the foreign tax authority can only be challenged in the other state.
In many cases, the information holder fails to adequately justify the absence of foreseeable relevance. This is partly because Luxembourg courts are reluctant to address procedural or substantive foreign tax law issues. One recent appeal was successful: the tax authorities had wrongly considered that the recipient of the injunction could be considered the holder of the requested information.
Several taxpayers have tried arguing that, based on the wording of CJEU judgments, they would still have the possibility to challenge the injunction in their specific circumstances. The tribunal has so far consistently dismissed these appeals as inadmissible, raising questions about whether it employs an overly restrictive interpretation of CJEU case law. The current status quo is unsatisfactory in several respects, as it:
Guarantee call assessments
The Luxembourg tax authorities are allowed to issue these bulletins d’appel en garantie to present or former legal representatives of a company who have committed a fault in the exercise of their functions by not ensuring that the company pays its due taxes. The termination of the mandate of a manager or director does not prevent the tax authorities from seeking payment from such person under a guarantee call assessment. Also, a manager may be held liable for failures to pay taxes that became due before the beginning of the manager's mandate. In such circumstances, the reproach is that the manager failed to remedy the issue once they had the power to do so.
Most of the appeals are predictably unsuccessful. This is partly due to the fact that the judgments in these cases often use similar wording. In many cases, the legal representative claims that they have not committed a fault, as the failure to pay the tax was due to external circumstances, such as the poor financial health of the company or the failure of other legal representatives to act. However, these arguments are usually rejected.
Where the failure to pay concerns wage withholding tax, it is often not possible to invoke the poor financial health of the company because the wage withholding tax is not a debt of the company per se but an amount to be paid on behalf of the employees. The argument furthermore loses credibility when net wages are paid to the employees, and it is solely the withholding tax that is not paid.
Finally, claiming that the tax authorities should rather go after other (ex-) representatives is also not a valid argument, as the procedure explicitly allows the tax authorities to issue guarantee call assessments to any of the representatives, provided that their choice respects the generic principles of appropriateness (Zweckmäßigkeit) and fairness (Billigkeit).
This type of case is linked to transfer pricing considerations and sometimes to claims of irregular accounting. These cases address situations where a company has given benefits to a shareholder or a related party which it would not have granted without the beneficiary having such status.
The types of undue benefits can be quite varied, eg:
A majority of these cases is lost by the taxpayer because they fail to rebut the body of evidence submitted by the tax authorities. The failure can arise from a lack of regular accounting and supporting accounting documentation, a failure to justify the commercial rationale of a transaction, or a lack of a proper transfer pricing study.
Application of the IP regime
The former Luxembourg IP regime, like other regimes in other EU member states, was quite generous: it exempted 80% of the net income from a wide range of IP assets and did not entail particular requirements regarding IP development taking place in Luxembourg. As a result, many groups (also domestic Luxembourg groups) resorted to this regime to reduce their tax base.
While a revamped and more restrictive regime has been introduced in line with changes made in the EU following the Organisation of Economic Cooperation and Development’s BEPS Action 5 report on harmful tax regimes, litigation is still ongoing in relation to the old regime, which was phased out between 2016 and 2020.
This is a subject where taxpayers are particularly successful in appeal, even in first instance before the tribunal. This is because the tax authorities are said to be unfavourable to the regime and are therefore quick to challenge its application – be it in relation to the timing of the IP asset acquisition, the economic ownership of the IP, the classification of the income as a royalty, or the amount of royalties involved. Due to this tendency to challenge, the tax authorities’ arguments occasionally go against the obvious, which explains the higher success rate of taxpayers in these cases.
Topics for the coming months
Upcoming cases include subjects such as:
Some Strategic Considerations and Trends
To pay or not to pay?
In Luxembourg, an objection and a subsequent appeal before the administrative jurisdictions is not suspensive. As a result, a question often asked is whether the tax must really be paid while an assessment is being litigated. The legal obligation to pay the tax due remains fully in force, unless the taxpayer has obtained from the tax office a payment suspension or payment deferral, both of which are unlikely.
When appealing before the tribunal, the taxpayer can also in parallel request a stay order from the president of the tribunal. For this, the taxpayer must show that their arguments have a reasonable chance of success and that enforcing the payment obligation would cause them severe and irreparable harm.
The president of the tribunal is strict in evaluating these criteria. However, in January 2023 a stay order was successfully granted to a taxpayer who had not demonstrated severe and irreparable harm. The position of the tax authorities was so unreasonable that the president found that the tax authorities could not hide behind formal requirements to maintain the enforceability of a decision that seemed so obviously questionable. It remains to be seen whether this landmark stay order can be invoked in other, less clear circumstances.
If a taxpayer has not obtained a suspension of the payment obligation, late payment interest will accrue at a rate of 0.6% per month. This cost needs to be balanced against (i) the significantly increasing cost of borrowing in case the taxpayer does not avail of sufficient cash and (ii) the risk of the tax authorities seeking to enforce the payment obligation by seizing (in principle Luxembourg-situated) assets.
Waiting for a director’s decision
The mandatory first step to challenge a corporate tax assessment is filing an objection with the director of the tax authorities. When a decision which rejects the objection is issued, the taxpayer has three months to appeal such decision before the administrative tribunal. If no decision is issued within six months of filing the objection, the taxpayer is free to directly appeal the assessments before the tribunal without a time limit, as long as no decision has been adopted.
Due to the growing backlog at the director’s level, more and more taxpayers choose to directly appeal after six to eight months without waiting for a director’s decision. This approach saves time, particularly as the tribunal procedure itself has become more protracted:it is now common for taxpayers to wait 15 to 18 months for the oral hearing after the written phase (which takes five months from the filing of the appeal), followed by an additional three to nine months (or sometimes even longer) for a judgment.
There can be one downside of not waiting for the director’s decision: if at any time the director does adopt a decision ruling on the objection, the appeal before the administrative tribunal becomes moot and, if the decision goes against the taxpayer, a whole new procedure needs to be started.
On the other hand, it seems filing an appeal can also spur the director to take a decision in favour of the taxpayer in cases which are likely to be lost by the tax authorities. In this situation, the tribunal procedure can be withdrawn further to the receipt of the decision and, normally, of revised tax assessments.
Taking out insurance
More litigation means more risks and also a new market for insurers and taxpayers wishing to reduce their exposure to potentially large tax bills. One can expect that brokers and insurers will look with increasing interest at Luxembourg, in view of the increasing volume and complexity of tax controversy cases.
Proposed changes to the procedure
A recent bill of law proposes several important changes which still need to be debated by parliament. These include:
In summary, Luxembourg is no longer an outlier with few tax controversy cases. The numerous legislative changes in recent years and further changes due to be implemented (eg, Pillar Two rules) have heightened legal uncertainty, leading to an increase in litigation while the frequency of tax rulings has concurrently decreased.
In parallel to domestic tax litigation, some EU cases have been argued by Luxembourg resident taxpayers and/or Luxembourg itself, including cases on state aid and tax rulings and a case on the conformity of the publicity of information on the register of ultimate beneficial owners with the right to privacy protected by the Charter of Fundamental Rights of the EU. Consequently, tax controversy in Luxembourg extends beyond the borders of the Grand Duchy and can also have an impact across the EU.
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