Melkonyan, Satenik
Flow-through holding companies in light of the Parent-Subsidiary Directive the thin line between tax planning and tax abuse / Satenik Melkonyan & Filip Schade .-- , 2019
Resumen.
This article analyses a tax structuring technique which can, even in the post-BEPS era, lead to unfavourable results from a fiscal perspective. First, it describes a disputed tax planning scheme. In particular, the authors show that by using partially tax-exempt companies under Article 2(a)(iii) of the Parent-Subsidiary Directive as flowthrough holding companies, the general partner of the latter can achieve a fully tax-free repatriation of profits within the EU. Subsequently, the article addresses the question as to whether this result can be tackled by currently available legal anti-abuse means (section 3). The authors suggest that the taxpayer-friendly settled case law of the EU Court of Justice (ECJ) makes it almost impossible for current anti-abuse rules to cover this technique. Finally, the authors recommend that the personal scope of the Parent-Subsidiary Directive be limited, which should provide an effective solution for such structures, while also being suitable for political consensus among the Member States (section 4).
HOLDINGS
SUCURSALES
IMPUESTOS
PLANIFICACION FISCAL INTERNACIONAL
ABUSO DEL DERECHO
PREVENCIÓN
UNION EUROPEA
ELUSION FISCAL
LEGISLACION COMUNITARIA
Schade, Filip
Intertax 0165-2826 v. 47, Issue 6/7, June / July 2019, p. 590-608
Flow-through holding companies in light of the Parent-Subsidiary Directive the thin line between tax planning and tax abuse / Satenik Melkonyan & Filip Schade .-- , 2019
Resumen.
This article analyses a tax structuring technique which can, even in the post-BEPS era, lead to unfavourable results from a fiscal perspective. First, it describes a disputed tax planning scheme. In particular, the authors show that by using partially tax-exempt companies under Article 2(a)(iii) of the Parent-Subsidiary Directive as flowthrough holding companies, the general partner of the latter can achieve a fully tax-free repatriation of profits within the EU. Subsequently, the article addresses the question as to whether this result can be tackled by currently available legal anti-abuse means (section 3). The authors suggest that the taxpayer-friendly settled case law of the EU Court of Justice (ECJ) makes it almost impossible for current anti-abuse rules to cover this technique. Finally, the authors recommend that the personal scope of the Parent-Subsidiary Directive be limited, which should provide an effective solution for such structures, while also being suitable for political consensus among the Member States (section 4).
HOLDINGS
SUCURSALES
IMPUESTOS
PLANIFICACION FISCAL INTERNACIONAL
ABUSO DEL DERECHO
PREVENCIÓN
UNION EUROPEA
ELUSION FISCAL
LEGISLACION COMUNITARIA
Schade, Filip
Intertax 0165-2826 v. 47, Issue 6/7, June / July 2019, p. 590-608