1. Where a Member State considers a non-resident transferring or acquired company to be fiscally transparent on the basis of that Member State’s assessment of the legal characteristics of that company arising from the law under which it is constituted, it shall have the right not to apply the provisions of this Directive when taxing a direct or indirect shareholder of that company in respect of the income, profits or capital gains of that company.
2. A Member State exercising the right referred to in paragraph 1 shall give relief for the tax which, but for the provisions of this Directive, would have been charged on the fiscally transparent company on its income, profits or capital gains, in the same way and in the same amount as that Member State would have done if that tax had actually been charged and paid.
3. Where a Member State considers a non-resident receiving or acquiring company to be fiscally transparent on the basis of that Member State’s assessment of the legal charact
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