On 4 March 2016, the Dutch Supreme Court (“Court”) delivered its final judgments in X, Miljoen, and Société Générale (Joined Cases C-10/14, C-14/14, C-17/14), both referring to the refund of Dutch withholding tax on dividends to foreign (non-Dutch) individual and corporate shareholders. The Court held that the Dutch dividend withholding tax breaches the freedom of capital to the extent that the tax borne by foreign shareholders in the Netherlands is more burdensome than the personal or corporate income tax which is borne by their Dutch resident counterparts. Accordingly, foreign dividend recipients that actually bear a comparatively heavier tax burden in the Netherlands would be eligible for a refund of the excess Dutch dividend taxes levied. Comparative calculations must be made on a case-by-case basis. The Court´s judgments follow the preliminary rulings of the Court of Justice of the European Union (“CJEU”) in these cases of 17 September 2015.
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