Same Game, Different Form? - Corporate Restructurings as a Form of Dividend Stripping and the EU Anti-Abuse Framework
(2026) HARN60 20261Department of Business Law
- Abstract
- This thesis examines whether the transfer of a company containing accumulated retained earnings to a shareholder benefiting from a more favourable dividend tax regime can constitute a form of structural dividend stripping under EU law. Unlike traditional dividend stripping arrangements, such as cum-ex and cum-cum transactions, these structures rely on intra-group corporate restructurings through which legal entitlement to future dividend distributions is shifted to a more favourably taxed entity while the economic interest within the group remains substantially unchanged.
Through a legal analysis of the PSD, the general EU principle prohibiting abuse of law, relevant CJEU case law and Dutch anti-dividend stripping legislation, this thesis... (More) - This thesis examines whether the transfer of a company containing accumulated retained earnings to a shareholder benefiting from a more favourable dividend tax regime can constitute a form of structural dividend stripping under EU law. Unlike traditional dividend stripping arrangements, such as cum-ex and cum-cum transactions, these structures rely on intra-group corporate restructurings through which legal entitlement to future dividend distributions is shifted to a more favourably taxed entity while the economic interest within the group remains substantially unchanged.
Through a legal analysis of the PSD, the general EU principle prohibiting abuse of law, relevant CJEU case law and Dutch anti-dividend stripping legislation, this thesis evaluates whether such restructurings may fall within the scope of Article 1(2) PSD. Particular attention is given to the distinction between genuine and non-genuine arrangements, the objective and subjective elements of abuse, and the temporal assessment of abusive structures.
It is argued that structural dividend stripping may arise where a restructuring interposes a more favourably taxed intermediary without a corresponding transfer of economic ownership and where the intermediary lacks a genuine holding function characterised by real governance, independent risk-bearing, and autonomous dividend discretion. Although the legal form differs from traditional cum-cum structures, the underlying economic logic remains comparable.
The thesis further demonstrates that the proportionality principle embedded in the “to the extent” formulation of Article 1(2) PSD limits the denial of Directive benefits to the abusive element of the arrangement. As a result, only distributions attributable to retained earnings accumulated prior to the restructuring may justify the denial of withholding tax relief. Finally, the thesis assesses the compatibility of the 2024 Dutch reversal of the burden of proof with the CJEU’s prohibition on general presumptions of abuse and concludes that significant uncertainty remains regarding the permissible scope of national anti-abuse measures under EU law. (Less)
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https://lup.lub.lu.se/student-papers/record/9235214
- author
- Dijkstra, Ilse LU
- supervisor
- organization
- course
- HARN60 20261
- year
- 2026
- type
- H1 - Master's Degree (One Year)
- subject
- keywords
- dividend stripping, Parent-Subsidiary Directive, Article 1(2) PSD, anti-abuse, GAAR, cum-cum, intra-group restructuring, retained earnings, withholding tax, beneficial ownership, economic substance, proportionality, burden of proof, CJEU, Netherlands
- language
- English
- id
- 9235214
- date added to LUP
- 2026-06-16 11:10:32
- date last changed
- 2026-06-16 11:10:32
@misc{9235214,
abstract = {{This thesis examines whether the transfer of a company containing accumulated retained earnings to a shareholder benefiting from a more favourable dividend tax regime can constitute a form of structural dividend stripping under EU law. Unlike traditional dividend stripping arrangements, such as cum-ex and cum-cum transactions, these structures rely on intra-group corporate restructurings through which legal entitlement to future dividend distributions is shifted to a more favourably taxed entity while the economic interest within the group remains substantially unchanged.
Through a legal analysis of the PSD, the general EU principle prohibiting abuse of law, relevant CJEU case law and Dutch anti-dividend stripping legislation, this thesis evaluates whether such restructurings may fall within the scope of Article 1(2) PSD. Particular attention is given to the distinction between genuine and non-genuine arrangements, the objective and subjective elements of abuse, and the temporal assessment of abusive structures.
It is argued that structural dividend stripping may arise where a restructuring interposes a more favourably taxed intermediary without a corresponding transfer of economic ownership and where the intermediary lacks a genuine holding function characterised by real governance, independent risk-bearing, and autonomous dividend discretion. Although the legal form differs from traditional cum-cum structures, the underlying economic logic remains comparable.
The thesis further demonstrates that the proportionality principle embedded in the “to the extent” formulation of Article 1(2) PSD limits the denial of Directive benefits to the abusive element of the arrangement. As a result, only distributions attributable to retained earnings accumulated prior to the restructuring may justify the denial of withholding tax relief. Finally, the thesis assesses the compatibility of the 2024 Dutch reversal of the burden of proof with the CJEU’s prohibition on general presumptions of abuse and concludes that significant uncertainty remains regarding the permissible scope of national anti-abuse measures under EU law.}},
author = {{Dijkstra, Ilse}},
language = {{eng}},
note = {{Student Paper}},
title = {{Same Game, Different Form? - Corporate Restructurings as a Form of Dividend Stripping and the EU Anti-Abuse Framework}},
year = {{2026}},
}