Direct taxation - AG Kokott opines on the ‘expected interest’-criterium (État luxembourgeois)

The French tax authorities made a request for exchange of information to the Luxembourg tax authorities aiming at the bene cial owners of the Luxembourg-based company L. L is indirectly the parent company of F which is based in France. F owns real estate in France. Individuals who directly or indirectly own real estate located in France are required to le a property tax return in France. Consequently, the Luxembourg tax authorities ordered L to provide information and documents on the shareholders and also on the direct or indirect bene cial owners. L did not agree and eventually lodged an appeal. The Luxembourg ‘Cour Administrative’ asked three preliminary questions. The third preliminary question is considered to be of minor importance and therefore, is not further explained hereafter.

The rst preliminary question concerns whether the identi cation requirements have been met since those to whom the request relates (shareholders) have not been identi ed individually and by name. The second question concerns the degree of substantiation of the request, in particular the criterion of ‘expected interest’ and the extent to which it must be made clear that a legal obligation has not been ful lled in the requesting State. AG Kokott published her Opinion on 3 June 2021.

First, AG Kokott does not read in the directive a limitation that the request can only relate to individual and taxpayers identi ed by name. Second, regarding the ‘expected interest’, AG Kokott concluded that requests with respect to a group of determinable but not already identi ed taxpayers are permissible, provided that (1) the group is described as concretely and broadly as possible, (2) it is explained what tax obligations this group of taxpayers has and what facts underlie the request, and (3) it is explained why there is reason for the assumption that the group has not complied with the law.