In May 2018 a decision was reached by the Swedish
Administrative Court of Appeal in relation to an appeal filed
by a US mutual fund, regulated under the Investment
Company Act of 1940 (a “RIC”), to recover Withholding Tax
(“WHT”) suffered in Sweden under EU law principles (“Fokus
Bank claims”). The RIC was formed as a Maryland corporation
which later converted to a Delaware Statutory Trust.
US RICs had previously obtained refunds in Sweden following
three positive decisions at the Administrative Court of Appeal
in December 2014, where the court had held that the RICs in
question were comparable to a Swedish investment fund and
therefore the WHT suffered by the RICs was a restriction of
the Free Movement of Capital under article 63 of the Treaty of
the Functioning of the EU (“TFEU”) and therefore was
contrary to EU law.
However, a subsequent case in March 2016 relating to a
Luxembourg fund held that non-UCITS funds with a separate
legal personality were not comparable to a Swedish
investment fund. Following this case, the Swedish Tax
Authority (“STA”) denied refunds of WHT claimed by US
RICs, taking the view that US RICs were not comparable as a
result of this case.