Abuse Under The Merger Directive A Different Approach To The Concept Of Valid Comercial Reasons
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| Author | : Dinis Tracana |
| Publisher | : |
| Total Pages | : 243 |
| Release | : 2018 |
| Genre | : |
| ISBN | : 9789724077789 |
Présentation de l'éditeur : "This thesis, entitled "Abuse under the Merger Directive - A different approach to the concept of 'valid commercial reasons'", deals with the issue of tax avoidance within the scope of the Merger Directive, where the Author attempts to determine the concept of 'abuse' in the context of EU cross-border restructuring transactions and deal with some practical issues arising from the application of the Merger Directive's anti-abuse provision. In order to reach the conclusions sought by the Author, a first analysis regarding the importance of 'abuse' in the tax field and the financial, social and legislative consequences of these conducts driven by tax avoidance or tax evasion purposes will be undertaken. Terminological issues concerning the meaning of the concepts of tax mitigation, ́tax evasion', ́tax fraud' and ́tax avoidance' and limitations to the application of domestic anti-abuse previsions will also be addressed. This study then analyses the requirements for the application of the Merger Directive and the underlying purpose for the tax deferral system, followed by a critical review of the ECJ's case-law on the Merger Directive's anti-abuse rule. The Author then determines the scope of the said rule, through the establishment of general criteria for the finding of 'valid commercial reasons', as well as criteria for the application of presumptions of abuse. Finally, this thesis approaches several practical issues arising from the application of article 15 (1) (a) of the Merger Directive, namely whether Member-States are entitled to partially apply the tax deferral system, if there is a connection between qualifying transactions and the maintenance of the holding period for the purposes of the Parent-Subsidiary Directive, whether Member-States are also entitled to apply irrebuttable presumptions of ́abuse' and what may be the consequences for the concept of 'abuse' deriving from the last recommendations of the Commission."
| Author | : Dinis Tracana |
| Publisher | : Leya |
| Total Pages | : 247 |
| Release | : 2016-10-01 |
| Genre | : Law |
| ISBN | : 9724067785 |
This thesis, entitled "Abuse under the Merger Directive - A different approach to the concept of `valid commercial reasons'", deals with the issue of tax avoidance within the scope of the Merger Directive, where the Author attempts to determine the concept of `abuse' in the context of EU cross-border restructuring transactions and deal with some practical issues arising from the application of the Merger Directive's anti-abuse provision. In order to reach the conclusions sought by the Author, a first analysis regarding the importance of `abuse' in the tax field and the financial, social and legislative consequences of these conducts driven by tax avoidance or tax evasion purposes will be undertaken. Terminological issues concerning the meaning of the concepts of tax mitigation, 'tax evasion', 'tax fraud' and 'tax avoidance' and limitations to the application of domestic anti-abuse previsions will also be addressed. This study then analyses the requirements for the application of the Merger Directive and the underlying purpose for the tax deferral system, followed by a critical review of the ECJ's case-law on the Merger Directive's anti-abuse rule. The Author then determines the scope of the said rule, through the establishment of general criteria for the finding of `valid commercial reasons', as well as criteria for the application of presumptions of abuse. Finally, this thesis approaches several practical issues arising from the application of article 15 (1) (a) of the Merger Directive, namely whether Member-States are entitled to partially apply the tax deferral system, if there is a connection between qualifying transactions and the maintenance of the holding period for the purposes of the Parent- Subsidiary Directive, whether Member-States are also entitled to apply irrebuttable presumptions of 'abuse' and what may be the consequences for the concept of `abuse' deriving from the last recommendations of the Commission. Key words: Merger Directive; tax avoidance; abuse; restructurings; reorganizations.
| Author | : Daniel Blum |
| Publisher | : Linde Verlag GmbH |
| Total Pages | : 473 |
| Release | : 2016-09-19 |
| Genre | : Law |
| ISBN | : 3709408385 |
Analysis of notion, roots und measures of treaty abuse The OECD initiative on Base Erosion and Profit Shifting has put the issue of treaty abuse and the means to counter it on top of the global political agenda. Preventing treaty abuse is therefore currently one of the most debated topics in international tax law. Diverging national legal traditions in combatting abuse both under domestic and tax treaty law have led to a globally diversified legal framework in this respect and make the OECD’s agenda to harmonize these attempts even more challenging. The aim of this book is to analyze the notion of treaty abuse, its historical roots and the measures to counter it. The book’s topics cover a wide range of both policy and legal issues. The contributions’ main focus lies onanalyzing the proposals put forward by the OECD in BEPS action items 6 and 7. In addition, this book analyzes the lessons which can be learnt from the US tax treaty policy and elaborates on the effects the intensified fight against treaty abuse will have from a Non-OECD member state perspective. Also EU law is taken into account and the question raised which impact the fundamental freedoms might have on the development of new anti-avoidance rules. Finally the relation between domestic and treaty based anti-avoidance is analyzed in great detail, identifying the methodical problems of ensuring a sound and abuse safe legal framework. With this book, the authors and editors hope to contribute to the discussion on selected issues of preventing treaty abuse and the challenges they present to policy makers, judges, tax administrations and tax advisers.
| Author | : Robert F. van Brederode |
| Publisher | : Springer Nature |
| Total Pages | : 419 |
| Release | : 2019-11-02 |
| Genre | : Law |
| ISBN | : 9811500894 |
This book does not present a single philosophical approach to taxation and ethics, but instead demonstrates the divergence in opinions and approaches using a framework consisting of three broad categories: tax policy and design of tax law; ethical standards for tax advisors and taxpayers; and tax law enforcement. In turn, the book addresses a number of moral questions in connection with taxes, concerning such topics as: • the nature of government • the relation between government (the state) and its subjects or citizens • the moral justification of taxes• the link between property and taxation• tax planning, evasion and avoidance • corporate social responsibility• the use of coercive power in collecting taxes and enforcing tax laws • ethical standards for tax advisors • tax payer rights • the balance between individual rights to liberty and privacy, and government compliance and information requirements • the moral justification underlying the efforts of legislators and policymakers to restructure society and steer individual and corporate behavior.
| Author | : Christiana HJI Panayi |
| Publisher | : Cambridge University Press |
| Total Pages | : 397 |
| Release | : 2021-06-17 |
| Genre | : Business & Economics |
| ISBN | : 1108839029 |
What is the impact of European Union law on Member State corporate tax systems and the cross-border activities of companies?
| Author | : Peter J. Wattel |
| Publisher | : Kluwer Law International B.V. |
| Total Pages | : 863 |
| Release | : 2018-11-20 |
| Genre | : Law |
| ISBN | : 9403505842 |
Peter J. Wattel is Advocate General in the Supreme Court of the Netherlands, State Councillor extraordinary in the Netherlands Council of State and professor of EU tax law at the Amsterdam Centre for Tax Law (ACTL), University of Amsterdam. Otto Marres is professor at the ACTL and tax lawyer at Meijburg & Co., Amsterdam. Hein Vermeulen is professor at the ACTL and Director of PwC’s EU Direct Tax Group. The seventh edition of this two-volume set brings a comprehensive and systematic survey of European Tax Law up to January 2018. It provides a state of the art clarification and analysis of the implications of the EU Treaties and secondary EU law for national and bilateral tax law. From the consequences of the EU free movement rights - to the soft law meant to put a halt to harmful tax competition. The seventh edition of European Tax Law offers a cutting-edge analysis of the field surrounding tax law across Europe. It puts forward a thought-provoking discussion of the current EU tax rules, as well as of the EU Court’s case law in tax matters. Previous editions were highly regarded as a staple overview of EU tax law among EU tax law practitioners, policymakers, the judiciary and academics alike. With its updated legislation and case-law up to January 2018, this new edition maintains its unparalleled depth and clarity as the go-to reference book in the field. This first volume of ‘European Tax Law’ extensively covers: 1. The consequences of the EU free movement rights, the EU State aid prohibition, the EU Charter of Fundamental Rights and the general principles of EU law for national tax law, tax treaties, national (tax) procedure, State liability and relations with third States, as they appear from the case law of the Court of justice of the EU 2. Secondary EU law in force and proposed on direct taxes: the Parent-Subsidiary Directive, the Tax Merger Directive, the Interest and Royalties Directive, cross-border tax dispute settlement instruments, the Anti-Tax Avoidance Directive and the C(C)CTB proposal 3. The exchange of information and other administrative assistance in the assessment and recovery of taxes between the EU Member States 4. Soft Law on Harmful Tax Competition 5. Procedural matters and the extent of judicial protection The upcoming second volume of this set will cover harmonization of indirect taxation, energy taxation and capital duty, as well as administrative cooperation in the field of indirect taxation.
| Author | : Pasquale Pistone |
| Publisher | : Kluwer Law International B.V. |
| Total Pages | : 424 |
| Release | : 2002-03-11 |
| Genre | : Business & Economics |
| ISBN | : 9041198601 |
Study on the question of harmonization of direct taxation among European Community Member States: how Member States must comply with EC Law as they apply their tax treaties, how EC law regulates cross-border tax issues within the Community, and how EC law affects tax treaties between EU Member States and third countries. The book provides expert commentary on 27 leading tax cases from the European Court of Justice, and gives the proposal of EC Model Tax Convention, which combines existing provisions of international tax law with the principles of Community tax law.
| Author | : Rita de la Feria |
| Publisher | : Bloomsbury Publishing |
| Total Pages | : 533 |
| Release | : 2011-06-09 |
| Genre | : Law |
| ISBN | : 1847317855 |
The Court of Justice has been alluding to 'abuse and abusive practices' for more than thirty years, but for a long time the significance of these references has been unclear. Few lawyers examined the case law, and those who did doubted whether it had led to the development of a legal principle. Within the last few years there has been a radical change of attitude, largely due to the development by the Court of an abuse test and its application within the field of taxation. In this book, academics and practitioners from all over Europe discuss the development of the Court's approach to abuse of law across the whole spectrum of European Union law, analysing the case-law from the 1970s to the present day and exploring the consequences of the introduction of the newly designated 'principle of prohibition of abuse of law' for the development of the laws of the EU and those of the Member States.
| Author | : Tomi Viitala |
| Publisher | : IBFD |
| Total Pages | : 427 |
| Release | : 2005 |
| Genre | : Capital gains tax |
| ISBN | : 9076078750 |
The book analyses the taxation of investment funds and their investors from the standpoint of domestic tax laws, tax treaties and EC law. It also provides a comprehensive understanding of the tax issues arising in the cross-border transactions of investment funds and private fund investors in the European Union. The viewpoints of the source state of income, residence state of the investment fund as well as the residence state of the investor are all considered. The book takes a comparative approach by covering five EU Member States (the United Kingdom, Germany, France, Luxembourg and Finland). On the basis of the examination at the Member State level, the present tax rules and practices are tested against the fundamental freedoms of the EC Treaty. The conclusion is that there are still various tax measures that are likely to be in conflict with EC law. The book also discusses possibilities of adopting targeted measures of positive integration at the level of the European Union with a view to enhancing the objective of the single investment fund market.
| Author | : Alexandre Saydé |
| Publisher | : Bloomsbury Publishing |
| Total Pages | : 506 |
| Release | : 2014-12-01 |
| Genre | : Law |
| ISBN | : 178225403X |
How can the concept of abuse of European Union law – which can be defined as undesirable choice of law artificially made by a private citizen – generate so much disagreement among equally intelligent individuals? Seeking to transcend the classical debate between its supporters and adversaries, the present study submits that the concept of abuse of EU law is located on three major fault-lines of EU law, which accounts for the well-established controversies in the field. The first fault-line, which is common to all legal orders, opposes legal congruence (the tendency to yield equitable legal outcomes) to legal certainty (the tendency to yield predictable legal outcomes). Partisans of legal congruence tend to advocate the prohibition of abuses of law, whereas partisans of legal certainty tend to oppose it. The second fault-line is specific to EU law and divides two conceptions of the regulation of the internal market. If economic integration is conceived as the promotion of cross-border competition among private businesses (the paradigm of 'regulatory neutrality'), choices of law must be proscribed as abusive, for they distort business competition. But if economic integration is intended to promote competition among Member States (the paradigm of 'regulatory competition'), choices of law by EU citizens represent a desirable process of arbitrage among national laws. The third and final fault-line corresponds to the tension between two orientations of the economic constitution of the European Union, namely the fear of private power and the fear of public power. Those who fear private power most tend to endorse the prohibition of abuses of law, whereas those who fear public power most tend to reject it. Seen in this way, the concept of abuse of EU law offers a forum in which fundamental questions about the nature and function of EU law can be confronted and examined in a new light. In May 2013, the thesis that this book was based on won the First Edition of the European Law Faculties Association Award for Outstanding Doctoral Thesis.
