The Dawn of a General Anti Avoidance Rule: the Italian Experience (original) (raw)
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The EU Directive against Tax Avoidance (ATAD-1)
Contemporary issues in Tax Research, 2017
The Anti Tax Avoidance Directive (ATAD-1) is perhaps the most important goal achieved so far by the European Union in the struggle against international avoidance and evasion: it makes the most of the findings and recommendations OECD summarized in the BEPS action plan. The goal of this paper is to compare the solutions adopted by the EU in the directive with the domestic provisions already in force in some member States, including Italy and the UK. The methodology chosen is comparative in its nature. Qualified anti-avoidance provisions (such as GAARs and DPT) already in force on a national scale have be tested in order to see whether they are compatible with the new European guidelines and rules. The first findings allow the interpreter to draw different conclusions depending on the national rules tested. While for some of them, such as the DPT (Diverted Profits Tax) the consistency with OECD recommendations and EU law is uncertain, others (such as most of the National GAARs) appear to be already compliant with the new European standards. In this later case however, the influence of EU law will be arguably essential in terms of interpretation of the rule, widening or narrowing its scope, together with the need to counterbalance the power of the Tax administration with the protection of the fundamental rights of the taxpayer that some Administrations are reluctant to grant while making use of GAARs. The conclusions stress also the innovative double standard approach of the EU legislator that made use of different provisions (more or less aggressive towards the taxpayer) depending on whether the tax structure is European or involves also third Countries.
The General Anti-avoidance Rule: its Expanding Role in International Taxation
Revista Direito Tributário Internacional Atual, 2017
Este artigo discute a função das normas gerais antielisivas e suas principais justificativas do ponto de vista do direito internacional tributário. Analisa se uma norma geral antielisiva poderia ser classificada como um princípio geral de direito internacional considerando também os desenvolvimentos recentes de organizações internacionais, incluindo alguns tribunais nacionais e internacionais, bem como o trabalho da Organização para a Cooperação e Desenvolvimento Econômico (OCDE)/Erosão de Base e Transferência de Lucros (BEPS). Debate também qual tipo de norma geral ou normas especificas seriam mais apropriadas como instrumento para controlar a elisão fiscal e suas consequências.
The General Anti-Avoidance Rule Consultative Committees
Comparative Law Review, 2014
A General Anti-Avoidance Rule (GAAR) is currently included in many tax systems to counteract the use (considered abusive) of the optimisation possibilities inherent in tax laws and available to taxpayers. A GAAR is applied if the sole or main purpose of the taxpayer's legal activity was avoiding taxation. Owing to its nature, the GAAR inevitably uses vague terms. Its structure always gives the tax authorities a large margin of discretion when making decisions. Therefore, even though the decisions made by tax authorities are subject to judicial review, some countries operate the system in which the position is worked out by the tax administration with the participation of special consultative bodies appointed for that purpose. They are to some degree independent of the tax administration. In Australia, the authority is called The Australian GAAR Panel, in France-Comité de l'abus de droit fiscal (CADF), in Canada-The GAAR Committee, and in the United Kingdom-The GAAR Advisory Panel. This article presents the composition, functions and proceedings of these consultative bodies. It is useful to study and consider the role of the committees from a comparative perspective, because the idea of introducing a GAAR into the Polish tax system is being presently considered. The draft amendment to the Tax Ordinance Act published in 2013 by the Polish Ministry of Finance also provides for the establishment of such an advisory body.
A Comparison of Common law and Civil law GAARs: The Cases of Australia and Italy
This article compares the features and attributes of the post 2013 Australian General Anti-Avoidance rule (GAAR) under a common law jurisdiction and the 2015 General Anti-abuse rule in Italy under a civil law jurisdiction. These selected GAARs are assessed and evaluated for their potential scope and impact via a number of criteria and benchmarks. While comparative elements and features are noted, the analysis finds that these particular GAARs will support their respective revenue authorities in tackling tax avoidance and abuse in future years. Summary:
Kluwer international tax blog, 2022
Domestic responses against international tax avoidance have sharply increased in the latest years worldwide (in this sense, DAC 6-type rules are worth mentioning). In this contest, GAAR shopping by competent authorities and tax administrations is a great challenge. These agencies are often inclined to pile up anti-avoidance rules of a treaty or domestic nature without any hierarchy or prevalence of application, and to surf back and forth on them to enhance the scope of the taxable event and revenue collection to its maximum possible reach. As a refinement of previously existing domestic GAAR, bilateral and multilateral (MLI) treaty anti-abuse responses have established a set of standards for transactions under the treaty umbrella that might create an overlapping effect, and hence, increase uncertainty unless sound ordering principles are followed in their application. Some ordering principles are advanced in MLI itself, but others must be developed considering the nuances of each jurisdiction’s domestic rules and treaty network, as demonstrated in the attached discussion which is particularly focused on Argentina.