September 2015  
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Issue No. 9 - 2015 of the European Taxation is now available online.

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Number 9 - 2015 contains the following:
ARTICLES
International
Status of Implementation of the Authorized OECD Approach into Domestic Tax Law and Tax Treaties – Part 2
Steef Huibregtse, Louan Verdoner, Igne Valutyte and René Offermanns
This article examines profit/loss allocation in a headquarter/branch scenario. Part 1, which was published in European Taxation 8 (2015), discussed the actual split between a head office and branch from a theoretical perspective, basic concepts derived from public international treaty law, the notion of Key Entrepreneurial
Risk-Taking Functions versus Significant People Functions and the Authorized OECD Approach (AOA). Part 2
continues to analyse the AOA, looks at the question of whether adequate capital is allocated to the branch as a
fictitious separate entity and outlines court cases, tax policy and advance pricing agreement/mutual agreement
procedure implications.
European Union
What Remains of the Marks & Spencer Exception for Final Losses? – Examining the Impact of Commission v.
United Kingdom
(Case C-172/13)
Melissa Danish
The ECJ decision in Commission v. United Kingdom (Case C-172/13) confirmed that the Marks & Spencer exception for final losses still, theoretically, has a place in EU law. The author examines what this implies from a practical perspective.
European Union
Parafiscal Taxes: Are They Compatible with EU Tax Law and the Fundamental Freedoms?
Dafnomilis (Vassilis) Vasileios
This article reviews and comments on the case law of the European Court of Justice concerning parafiscal taxes in conjunction with the fundamental freedoms using a case study on advertising fees as an example.
EU UPDATE
Commission
Laura Ambagtsheer-Pakarinen
Court of Justice
Laura Ambagtsheer-Pakarinen
WHAT'S GOING ON IN ...
European Union
EU Companies with Third State Dual Residency and the Freedom of Establishment: Unlawful Restriction by
Secondary Legislation and Corresponding National Tax Law
Thomas Kollruss
The author discusses whether or not article 3(b) of the EU Merger Directive (2009/133) and article 2(a)(ii) of the EU Parent Subsidiary Directive (2011/96) might unlawfully restrict the freedom of establishment of EU companies having third state dual residency.
Germany
Recent Developments in the German Tax Treatment of CFCs
Martin Weiss
This note describes the tax treatment of controlled foreign companies (CFCs) under German tax legislation and
case law. In a recent decision of the German Federal Tax Court, the taxpayer was not required to pay trade tax
on CFC income, thus altering the tax consequences of CFC income significantly. This decision has aligned the
German tax treatment of CFCs with that of foreign permanent establishments, the income of which is also not
subject to trade tax.
Germany
Referral to the ECJ on (Final) Cross-Border Losses – Timac Agro Deutschland (Case C-388/14)
Franziska Leich and Adrian Cloer
The authors review a case that was referred to the ECJ by the Fiscal Court of Cologne (Timac Agro Deutschland
(Case C-388/14)), which raises issues regarding German loss recapture rules that applied until 1998 and the deductibility of final losses incurred by an Austrian PE at the level of the German parent company applying the Marks & Spencer (Case C-446/03) exception. The court explicitly questions the compatibility of recent German Federal Fiscal Court decisions with ECJ case law and the interpretation of the finality criterion set out in Marks &
Spencer.
OFFICIAL JOURNAL OF THE CONFÉDÉRATION FISCALE EUROPÉENNE