Vlad Burilov | Tilburg University (original) (raw)

Drafts by Vlad Burilov


In the present article the author collates the evidence presented by the government of the Nether... more In the present article the author collates the evidence presented by the government of the Netherlands in justifying enactment of Amended International Assistance (Levying of Taxes) Act (WIB) in 2013 against conflicting evidence from legal scholarship and parliamentary discussions preceding introduction of WIB in 1985. In this respect, one OECD document and two national legislative documents are discussed below: the OECD Global Forum peer-review report on the Netherlands dated October 2011 (“Global Forum Report”), Letter from the State Secretary of Finance to the House of Representatives dated May 30th, 2013 (“Letter 2013”) , Letter from the State Secretary of Finance to the House of Representatives dated July 12th, 1985 (“Letter 1985”) .

In an ideal world, the merits of the disputed legislative and administrative measures shall be ob... more In an ideal world, the merits of the disputed legislative and administrative measures shall be objectively scrutinized by the ECJ on a case-by-case basis by scrupulous and methodological testing of the measure against the three prongs of proportionality: suitability, necessity and proportionality stricto sensu. That would mean a transparent, principle-based and non-discriminatory character of judicial policy. However, in reality application of the proportionality test is not strictly standardized and depends on a variety of factors and policy interests. If these factors and interests are not made explicit in the Court`s reasoning, the ECJ`s decisions and policy interest may become opaque, prejudiced and unpredictable leading to incorrect interpretation by EU legislator. This in turn may result in harmonization of the EU Law which is inconsistent with the ECJ case law, in general, and with the principle of proportionality, in particular.

The principle of proportionality is a well-known standard applied by adjudicative bodies in order... more The principle of proportionality is a well-known standard applied by adjudicative bodies in order to balance the public and the private interest. The purpose of my thesis is to discover whether the actual reason which could explain deference by the Adjudicatory Body to the state interest and neglect for bona fide taxpayers` rights is purely political - the international consensus among the OECD states to combat harmful tax practices and introduce defensive measures against non-cooperative tax heavens which do not exchange tax information with the OECD member states.The position which I am trying to develop and defend below is inspired by Hart and may be formulated as follows:
By serving the political interests of the states and by disregarding the doctrine the Adjudicatory Body engages itself in law-making without explicitly acknowledging this in its decision. The Adjudicatory Body shall apply the proportionality principle subject to its discretion but in strict accordance with the rules and the settled practice which underlie its application and in no event such application shall be determined by external moral or political reasoning.

In the context of global exchange of tax information between tax authorities of different states ... more In the context of global exchange of tax information between tax authorities of different states little academic attention has yet been paid to the balance of the public aim of preservation of tax base and effective collection of taxes with the private interest of protection of personal tax data. This is despite the observance of the trend that technological, political, and legal changes appear to reduce traditional safeguards for taxpayer interests such as privacy.

Three global developments have mainly contributed to such trend:
1. The shift from exchange of information on request to automatic exchange of information;
2. Extension of the scope of exchange to cover information on the holders of financial accounts and beneficiaries of organizations which are residents of the requesting state;
3. Emergence of the reinforced privacy and data protection standard on the EU level: GDPR, which, considering the parallel trend of a far-reaching AEoI, while building on the Data Protection Directive could have been recognized as a counterbalancing instrument to government`s intervention with the taxpayer`s right to privacy.

This Research Proposal is comprised of a literature review on the right to privacy in the context of exchange of tax information and builds upon three dimensions:

1. privacy in international instruments (MTC OECD, Model TIEA, CMAAT, CRS);
2. privacy in EU secondary law on exchange of tax information (DAC1, DAC2, DPD);
3. CJEU and ECtHR case law on application of Articles 7, 8 of the Charter of Fundamental Rights and Article 8 (1) of ECHR to exchange of information.

Draft "Economist-style" article on the prospects of application of AI-driven legal reasoning to t... more Draft "Economist-style" article on the prospects of application of AI-driven legal reasoning to transfer pricing audit

Not all states observe international treaty obligations. Dichotomy of dualist (international and ... more Not all states observe international treaty obligations. Dichotomy of dualist (international and domestic law are separate systems) and monist (international law forms part of domestic system) approaches has been viewed by many scholars as the starting point for answering the normative question: Shall a sovereign state comply with international law and avoid legislative treaty override, i.e. enacting legislation which is manifestly contrary to the international treaty? However, the comparative studies of treaty override in different states have yet to analyse legislative treaty override in conjunction with other forms of treaty override (such as judicial and quasi-legislative treaty override). This research builds itself neither solely on the legal system’s approach to treaty override nor on the normative observations related thereto. Rather a broader functional framework of treaty override (legislative, judicial and quasi-legislative) is proposed and put into the context of international double tax treaties. Based on the integrated theory of international law and functional approach the proposed framework of treaty override enables to render a comparative study of ten states and to explain how legal, political and social forces within and across legal systems affect prevalence of particular type of treaty override in each of the studied states.

In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue... more In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue, followed by a public campaign against tax havens and their allegedly free-riding tax regimes. However, the siege did not take long and in 2001 the OECD lost much of its fuse, leaving the tax havens unabashed. In addition, the OECD also distanced itself from tax harmonization as much as possible. The paper attempts to provide certain theoretical outline of positive and negative effects of tax competition. The reflections may be useful in understanding how underlying economic justifications could unbalance rather than reinforce the OECD rhetorics.

The EU Code of Conduct for Business Taxation and the Open Method of Co-ordination are reviewed f... more The EU Code of Conduct for Business Taxation and the Open Method of Co-ordination are reviewed from perspective of new modes of governance in EU social and tax policy. What is the debate about the use and role of soft law in the direct tax policy of the Community?

The element of artificiality of transaction is an essential element of Community law abuse doctri... more The element of artificiality of transaction is an essential element of Community law abuse doctrine in both direct and indirect taxation. However, there is no consensus among scholars on what is the role and scope of artifice and how it shall be identified by national courts in order to invoke abuse of law in taxation. Furthermore, a tendency to bring the two seemingly distinct abuse tests of Halifax and Cadbury Schweppes in line with each other is observed. The Research Proposal outlines controversies in interpretation of the elements of abuse in tax matters by scholars, It is further proposed to explore application of the elements of abuse on the national level in Netherlands.

Conference Presentations by Vlad Burilov

Presentation of the paper "Utility Token Offerings and Crypto Exchange Listings: how regulation c... more Presentation of the paper "Utility Token Offerings and Crypto Exchange Listings: how regulation can help?" on International Blockchain Conference in Groningen (Nov. 30, 2018)

Papers by Vlad Burilov

In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue... more In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue, followed by a public campaign against tax havens and their allegedly free-riding tax regimes. However, the siege did not take long and in 2001 the OECD lost much of its fuse, leaving the tax havens unabashed. In addition, the OECD also distanced itself from tax harmonization as much as possible. The paper attempts to provide certain theoretical outline of positive and negative effects of tax competition. The reflections may be useful in understanding how underlying economic justifications could unbalance rather than reinforce the OECD rhetorics.


In the present article the author collates the evidence presented by the government of the Nether... more In the present article the author collates the evidence presented by the government of the Netherlands in justifying enactment of Amended International Assistance (Levying of Taxes) Act (WIB) in 2013 against conflicting evidence from legal scholarship and parliamentary discussions preceding introduction of WIB in 1985. In this respect, one OECD document and two national legislative documents are discussed below: the OECD Global Forum peer-review report on the Netherlands dated October 2011 (“Global Forum Report”), Letter from the State Secretary of Finance to the House of Representatives dated May 30th, 2013 (“Letter 2013”) , Letter from the State Secretary of Finance to the House of Representatives dated July 12th, 1985 (“Letter 1985”) .

SSRN Electronic Journal, 2019

What do we know about justice in international taxation? Justice requires a principle-based judge... more What do we know about justice in international taxation? Justice requires a principle-based judgement on how to distribute the costs between taxpayers and the benefits between the states. This principle-based judgement has been interpreted by the doctrine through the concepts of inter-individual and inter-nation equity. The meaning and the role of equity in determining taxing rights and profit allocation between states has changed a lot in the recent decades. Globalisation, mobility of production factors and digitalisation underscore the importance of inter-nation equity in the quest for a just system of international taxation. The author of this thesis develops a politico-philosophical normative framework of global social justice and proposes an egalitarian approach to interpretation of inter-nation equity.

European Journal of Comparative Law and Governance, 2019

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (ic... more Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of tokenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing fiel...

SSRN Electronic Journal, 2018

The majority of utility token fundraising models (Initial Coin Offerings, ICOs) de facto favor sp... more The majority of utility token fundraising models (Initial Coin Offerings, ICOs) de facto favor speculation over consumption. The public interest is hence to protect investors’ rights by application of a new or traditional regulatory regime to such offerings. However, given that ICOs and crypto markets are a globally unregulated phenomenon, direct regulation threatens to stifle innovation and be unenforceable when startups and investors move supply and demand to unregulated markets. This article advocates for a balanced principle-based approach to direct regulation of utility token offerings. Further, the majorly unregulated market of crypto exchanges fuels crypto economy but provides for no gatekeeper’s function: no standardized token listing practices which would cater for commercial viability and innovativeness of the listed startup. Building upon the results of an empirical and case study this article argues that the new inclusive governance models applied by crypto exchanges in startup pre-vetting may fill this void.

European Journal of Comparative Law and Governance, 2019

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (ic... more Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of to-kenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing field for future supranational initiatives.

Thesis Chapters by Vlad Burilov

Tilburg University, 2019

What do we know about justice in international taxation? Justice requires a principle-based judge... more What do we know about justice in international taxation? Justice requires a principle-based judgement on how to distribute the costs between taxpayers and the benefits between the states. This principle-based judgement has been interpreted by the doctrine through the concepts of inter-individual and inter-nation equity. The meaning and the role of equity in determining taxing rights and profit allocation between states has changed a lot in the recent decades. Globalisation, mobility of production factors and digitalisation underscore the importance of inter-nation equity in the quest for a just system of international taxation. The author of this thesis develops a politico-philosophical normative framework of global social justice and proposes an egalitarian approach to interpretation of inter-nation equity.


In the present article the author collates the evidence presented by the government of the Nether... more In the present article the author collates the evidence presented by the government of the Netherlands in justifying enactment of Amended International Assistance (Levying of Taxes) Act (WIB) in 2013 against conflicting evidence from legal scholarship and parliamentary discussions preceding introduction of WIB in 1985. In this respect, one OECD document and two national legislative documents are discussed below: the OECD Global Forum peer-review report on the Netherlands dated October 2011 (“Global Forum Report”), Letter from the State Secretary of Finance to the House of Representatives dated May 30th, 2013 (“Letter 2013”) , Letter from the State Secretary of Finance to the House of Representatives dated July 12th, 1985 (“Letter 1985”) .

In an ideal world, the merits of the disputed legislative and administrative measures shall be ob... more In an ideal world, the merits of the disputed legislative and administrative measures shall be objectively scrutinized by the ECJ on a case-by-case basis by scrupulous and methodological testing of the measure against the three prongs of proportionality: suitability, necessity and proportionality stricto sensu. That would mean a transparent, principle-based and non-discriminatory character of judicial policy. However, in reality application of the proportionality test is not strictly standardized and depends on a variety of factors and policy interests. If these factors and interests are not made explicit in the Court`s reasoning, the ECJ`s decisions and policy interest may become opaque, prejudiced and unpredictable leading to incorrect interpretation by EU legislator. This in turn may result in harmonization of the EU Law which is inconsistent with the ECJ case law, in general, and with the principle of proportionality, in particular.

The principle of proportionality is a well-known standard applied by adjudicative bodies in order... more The principle of proportionality is a well-known standard applied by adjudicative bodies in order to balance the public and the private interest. The purpose of my thesis is to discover whether the actual reason which could explain deference by the Adjudicatory Body to the state interest and neglect for bona fide taxpayers` rights is purely political - the international consensus among the OECD states to combat harmful tax practices and introduce defensive measures against non-cooperative tax heavens which do not exchange tax information with the OECD member states.The position which I am trying to develop and defend below is inspired by Hart and may be formulated as follows:
By serving the political interests of the states and by disregarding the doctrine the Adjudicatory Body engages itself in law-making without explicitly acknowledging this in its decision. The Adjudicatory Body shall apply the proportionality principle subject to its discretion but in strict accordance with the rules and the settled practice which underlie its application and in no event such application shall be determined by external moral or political reasoning.

In the context of global exchange of tax information between tax authorities of different states ... more In the context of global exchange of tax information between tax authorities of different states little academic attention has yet been paid to the balance of the public aim of preservation of tax base and effective collection of taxes with the private interest of protection of personal tax data. This is despite the observance of the trend that technological, political, and legal changes appear to reduce traditional safeguards for taxpayer interests such as privacy.

Three global developments have mainly contributed to such trend:
1. The shift from exchange of information on request to automatic exchange of information;
2. Extension of the scope of exchange to cover information on the holders of financial accounts and beneficiaries of organizations which are residents of the requesting state;
3. Emergence of the reinforced privacy and data protection standard on the EU level: GDPR, which, considering the parallel trend of a far-reaching AEoI, while building on the Data Protection Directive could have been recognized as a counterbalancing instrument to government`s intervention with the taxpayer`s right to privacy.

This Research Proposal is comprised of a literature review on the right to privacy in the context of exchange of tax information and builds upon three dimensions:

1. privacy in international instruments (MTC OECD, Model TIEA, CMAAT, CRS);
2. privacy in EU secondary law on exchange of tax information (DAC1, DAC2, DPD);
3. CJEU and ECtHR case law on application of Articles 7, 8 of the Charter of Fundamental Rights and Article 8 (1) of ECHR to exchange of information.

Draft "Economist-style" article on the prospects of application of AI-driven legal reasoning to t... more Draft "Economist-style" article on the prospects of application of AI-driven legal reasoning to transfer pricing audit

Not all states observe international treaty obligations. Dichotomy of dualist (international and ... more Not all states observe international treaty obligations. Dichotomy of dualist (international and domestic law are separate systems) and monist (international law forms part of domestic system) approaches has been viewed by many scholars as the starting point for answering the normative question: Shall a sovereign state comply with international law and avoid legislative treaty override, i.e. enacting legislation which is manifestly contrary to the international treaty? However, the comparative studies of treaty override in different states have yet to analyse legislative treaty override in conjunction with other forms of treaty override (such as judicial and quasi-legislative treaty override). This research builds itself neither solely on the legal system’s approach to treaty override nor on the normative observations related thereto. Rather a broader functional framework of treaty override (legislative, judicial and quasi-legislative) is proposed and put into the context of international double tax treaties. Based on the integrated theory of international law and functional approach the proposed framework of treaty override enables to render a comparative study of ten states and to explain how legal, political and social forces within and across legal systems affect prevalence of particular type of treaty override in each of the studied states.

In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue... more In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue, followed by a public campaign against tax havens and their allegedly free-riding tax regimes. However, the siege did not take long and in 2001 the OECD lost much of its fuse, leaving the tax havens unabashed. In addition, the OECD also distanced itself from tax harmonization as much as possible. The paper attempts to provide certain theoretical outline of positive and negative effects of tax competition. The reflections may be useful in understanding how underlying economic justifications could unbalance rather than reinforce the OECD rhetorics.

The EU Code of Conduct for Business Taxation and the Open Method of Co-ordination are reviewed f... more The EU Code of Conduct for Business Taxation and the Open Method of Co-ordination are reviewed from perspective of new modes of governance in EU social and tax policy. What is the debate about the use and role of soft law in the direct tax policy of the Community?

The element of artificiality of transaction is an essential element of Community law abuse doctri... more The element of artificiality of transaction is an essential element of Community law abuse doctrine in both direct and indirect taxation. However, there is no consensus among scholars on what is the role and scope of artifice and how it shall be identified by national courts in order to invoke abuse of law in taxation. Furthermore, a tendency to bring the two seemingly distinct abuse tests of Halifax and Cadbury Schweppes in line with each other is observed. The Research Proposal outlines controversies in interpretation of the elements of abuse in tax matters by scholars, It is further proposed to explore application of the elements of abuse on the national level in Netherlands.

Presentation of the paper "Utility Token Offerings and Crypto Exchange Listings: how regulation c... more Presentation of the paper "Utility Token Offerings and Crypto Exchange Listings: how regulation can help?" on International Blockchain Conference in Groningen (Nov. 30, 2018)

In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue... more In 1998 the OECD published a well-known report: Harmful Tax Competition: An Emerging Global Issue, followed by a public campaign against tax havens and their allegedly free-riding tax regimes. However, the siege did not take long and in 2001 the OECD lost much of its fuse, leaving the tax havens unabashed. In addition, the OECD also distanced itself from tax harmonization as much as possible. The paper attempts to provide certain theoretical outline of positive and negative effects of tax competition. The reflections may be useful in understanding how underlying economic justifications could unbalance rather than reinforce the OECD rhetorics.


In the present article the author collates the evidence presented by the government of the Nether... more In the present article the author collates the evidence presented by the government of the Netherlands in justifying enactment of Amended International Assistance (Levying of Taxes) Act (WIB) in 2013 against conflicting evidence from legal scholarship and parliamentary discussions preceding introduction of WIB in 1985. In this respect, one OECD document and two national legislative documents are discussed below: the OECD Global Forum peer-review report on the Netherlands dated October 2011 (“Global Forum Report”), Letter from the State Secretary of Finance to the House of Representatives dated May 30th, 2013 (“Letter 2013”) , Letter from the State Secretary of Finance to the House of Representatives dated July 12th, 1985 (“Letter 1985”) .

SSRN Electronic Journal, 2019

What do we know about justice in international taxation? Justice requires a principle-based judge... more What do we know about justice in international taxation? Justice requires a principle-based judgement on how to distribute the costs between taxpayers and the benefits between the states. This principle-based judgement has been interpreted by the doctrine through the concepts of inter-individual and inter-nation equity. The meaning and the role of equity in determining taxing rights and profit allocation between states has changed a lot in the recent decades. Globalisation, mobility of production factors and digitalisation underscore the importance of inter-nation equity in the quest for a just system of international taxation. The author of this thesis develops a politico-philosophical normative framework of global social justice and proposes an egalitarian approach to interpretation of inter-nation equity.

European Journal of Comparative Law and Governance, 2019

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (ic... more Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of tokenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing fiel...

SSRN Electronic Journal, 2018

The majority of utility token fundraising models (Initial Coin Offerings, ICOs) de facto favor sp... more The majority of utility token fundraising models (Initial Coin Offerings, ICOs) de facto favor speculation over consumption. The public interest is hence to protect investors’ rights by application of a new or traditional regulatory regime to such offerings. However, given that ICOs and crypto markets are a globally unregulated phenomenon, direct regulation threatens to stifle innovation and be unenforceable when startups and investors move supply and demand to unregulated markets. This article advocates for a balanced principle-based approach to direct regulation of utility token offerings. Further, the majorly unregulated market of crypto exchanges fuels crypto economy but provides for no gatekeeper’s function: no standardized token listing practices which would cater for commercial viability and innovativeness of the listed startup. Building upon the results of an empirical and case study this article argues that the new inclusive governance models applied by crypto exchanges in startup pre-vetting may fill this void.

European Journal of Comparative Law and Governance, 2019

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (ic... more Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of to-kenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing field for future supranational initiatives.

Tilburg University, 2019

What do we know about justice in international taxation? Justice requires a principle-based judge... more What do we know about justice in international taxation? Justice requires a principle-based judgement on how to distribute the costs between taxpayers and the benefits between the states. This principle-based judgement has been interpreted by the doctrine through the concepts of inter-individual and inter-nation equity. The meaning and the role of equity in determining taxing rights and profit allocation between states has changed a lot in the recent decades. Globalisation, mobility of production factors and digitalisation underscore the importance of inter-nation equity in the quest for a just system of international taxation. The author of this thesis develops a politico-philosophical normative framework of global social justice and proposes an egalitarian approach to interpretation of inter-nation equity.