A pan-European GAAR? Some (un)expected consequences of the proposed EU Tax Avoidance Directive combined with the Dzodzi line of cases (original) (raw)
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Gaar As Tax Treaty Override – Slovak Perspective
DANUBE: Law and Economics Review, 2017
The article summarises the views on the interrelation of GAARs and tax treaties, abstracts defining criteria for the feasibility of GAAR as an anti-abuse instrument in tax treaty situations and applies these to the situation (legislation and case law) in the Slovak Republic. The aim of the article is to provide insight on the potential interrelation of GAAR rules with existing tax treaties and formulate policy advice that should be optimal given the facts at hand. It shows that GAAR in its current form would in general have limited effectiveness in tackling tax treaty abuse situations without it resulting in treaty override. This particularly applies to the Slovak Republic and likely to other states applying a monistic approach to international treaties, where the renegotiation of the treaty seems the only viable option. However, as in Slovakia the monist approach applies only to treaties ratified after July 2001, a different approach might be taken with respect to those that are st...
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.
GAAR as a tax treaty override -Slovak perspective
2017
The article summarises the views on the interrelation of GAARs and tax treaties, abstracts defining criteria for the feasibility of GAAR as an anti-abuse instrument in tax treaty situations and applies these to the situation (legislation and case law) in the Slovak Republic. The aim of the article is to provide insight on the potential interrelation of GAAR rules with existing tax treaties and formulate policy advice that should be optimal given the facts at hand. It shows that GAAR in its current form would in general have limited effectiveness in tackling tax treaty abuse situations without it resulting in treaty override. This particularly applies to the Slovak Republic and likely to other states applying a monistic approach to international treaties, where the renegotiation of the treaty seems the only viable option. However, as in Slovakia the monist approach applies only to treaties ratified after July 2001, a different approach might be taken with respect to those that are still subject to a dualist approach.
General Anti-Avoidance Rules Revisited: Reflections on Tim Edgar's "Building a Better GAAR
Canadian Tax Journal/Revue fiscale canadienne
In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules (GAARs) turns on two elements: a "subjective element," which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element," which considers the object or purpose of the relevant provisions to determine whether the tax benefit resulting from the transaction or arrangement is consistent with this object or purpose. Although these two elements are present in most modern GAARs, the function of each element within these rules and the relationship between them are often poorly understood. Other unresolved issues concern the roles of artificiality and economic substance in the application of these rules, and the relationship, if any, between these concepts and the "subjective" and "objective" elements of the rules. A final set of issu...
2010
Resumen: En enero de 2003 la OCDE introdujo importantes reformas en los Comentarios al Convenio Modelo en relacion con el problema la de aplicacion de clausulas internas anti-abuso en un contexto internacional. Conforme a la nueva posicion de los Comentarios la aplicacion de dichas clausulas nunca podria dar lugar a un conflicto con los convenios de doble imposicion pues constituyen exclusivamente reglas para determinar los hechos que eventualmente pueden dar lugar al nacimiento de la obligacion tributaria. Nuestro trabajo tiene como objetivo aflorar algunas debilidades de esta posicion: 1) Resulta juridicamente inconsistente y promueve la confusion entre transacciones simuladas y elusivas; 2) Se aparta de la verdadera solucion del problema que pasa por el analisis de las tecnicas de aplicacion de normas desde una perspectiva de teoria del Derecho. Conforme a este analisis demostramos como gran parte de los supuestos de treaty shopping pueden resolverse mediante una correcta interpr...