Luxembourg fund – German corporate tax – Free movement of capital 

  • In the case at hand, a Luxembourg fund governed by the “Specialized Investment Fund” (or SIF) regime held directly properties in Germany, received rental income therefrom and became liable to corporate tax in Germany according to German law (while “comparable” German funds were exempt of such tax). 
  • ECJ rules (C/537-20) that the “legislation of a Member State [here, Germany] which makes non-resident [Luxembourg] specialized property funds partially liable to corporate income tax in respect of the income from property which they receive in the territory of that Member State [i.e. Germany], whereas resident [German] specialized property funds are exempt from that tax” is a restriction on the free movement of capital between Member States. 

If you require additional information, please don’t hesitate to contact our tax team.