The Appeals Committee of the Supreme Court of Norway (Høyesteretts ankeutvalg) has made a decision to confirm it will hear an appeal in the Elopak v Norwegian Tax Administration case (Case 24-073908SIV-HRET) concerning tax dividends and the freedom of establishment.
The leave to appeal procedure
The underlying judgment trying to be appealed is that of the Borgarting Court of Appeal (Borgarting lagmannsretts) in Case 23-130797ASD-BORG/02.
In Norway, it is ordinarily the case that judgments of the courts of appeal are final. There is no automatic right to have the Supreme Court hear cases further. The only way this occurs is if permission is sought.
The Supreme Court cannot hear such cases without the consent of the appeals committee, and the appeals committee can only give consent when the appeal concerns questions that have significance, or for other reasons it is particularly important to have the case decided in the Supreme Court.
Facts of the case
The case is between Elopak ASA and the Norwegian Tax Administration (Skatteetaten).
At issue is the tax liability for dividends from a Norwegian company’s subsidiaries in Switzerland. In an intra-company move, a dividend distribution was made from Elopak Systems AG in Switzerland to Elopak ASA (formerly Elopak AS) in Norway, in 2011 and 2014.
The Norwegian Tax Administration was of the view that this movement was taxable income for Elopak ASA, and thus, made a decision accordingly. In Norwegian tax law, Switzerland is considered a low-tax state.
Accordingly, the cases raises questions of EFTA law, and whether Norwegian tax law is in line with applicable rules on the freedom of establishment.
Until now at two different instance, the Norwegian Tax Administration has won in both the Oslo District Court (Oslo tingrätt) and the Borgarting Court of Appeal (Borgarting lagmannsretts).
Decision of the Appeals Committee of the Supreme Court of Norway
The Appeals Committee of the Supreme Court of Norway has allowed the appeal to proceed to the Supreme Court. No reasons were stated.
The decision confirming that the Supreme Court will hear the case is available here.