The interpretation of the acte clair doctrine by the tax administrations and courts in EC Member States The Dutch practice Dennis Weber Professor European Corporate Tax Law Loyens & Loeff Judge Court of Appeals s-Hertogenbosch

Cases from Netherlands Courts (direct taxation/capital duty) 10 from Supreme Court 11 from Court of Appeals

Seven decisions – Supreme Court – past 10 years See: Weber/Davits, The practical application of the acte éclairé and acte clair doctrine (with references to Netherlands direct tax law), para. 6

No acte clair, but no referral (6 cases) 27 August 1997 (credit for foreign withholding tax) 27 August 1997 (exit tax) 14 November 2003 (fraus legis and capital duty) 23 January 2004 (fraus legis) New case before the Supreme Court 17 December 2004 (compensation of legal costs) Two A.G. of ECJ with other opinion (in D and in the N-case) 14 April 2006 (Bosal Holding and third States)

Acte clair in 2000, but not in December 2000 (deduction of interest; non- resident) Special case: at that moment (2000) acte clair But not anymore after: Ritter Now before the ECJ in Renneberg (2006)

Acte clair, but still referral Senior Engineering

Conclusion Over the last 10 years the Supreme Court is giving better grounds for its decision But still 6 cases in which there was no acte clair The Supreme Court should ask itself whether its decision that it has in mind can actually be found in Community law If not: no acte clair