Saving the ATAD CFC regime through abuse of law or the rule of reason Wilhelm Nyström
By: Nyström, Wilhelm
.
Material type: 
ArticlePublisher: 2021Subject(s): ATAD | SOCIEDADES EXTRANJERAS CONTROLADAS | ABUSO DEL DERECHO | DERECHOS HUMANOS | UNION EUROPEA
In:
Intertax v. 49, n. 3, March 2021, p. 223-236Summary: This article debates the extent to which the controlled foreign company (CFC) rules in the Anti-Tax Avoidande Directive (ATAD) are compatible with the EU fundamental freedoms. It considers why the ATAD CFC rules may restrict those freedoms and whether that conflict may be resolved by recourse to the general principle of abuse of law, which may prevent a taxpayer from relying on a fundamental freedom and thus prevent the restriction from arising, or to the rule of reason, which may serve to justify the restriction. The paper considers whether these may be treated as separate doctrines and some implications of doing so. The paper reaffirms that the ATAD CFC rules may be considered to be incompatible with the fundamental freedoms as interpreted in Cadbury Schweppes. Then, by reference to recent European Court of Justice decisions, the paper interprets new standards of artificiality and reassesses the aforementioned incompatibility.
| Item type | Current location | Home library | Call number | Status | Date due | Barcode |
|---|---|---|---|---|---|---|
| Artículos | IEF | IEF | OP 2141/2021/3-3 (Browse shelf) | Available | OP 2141/2021/3-3 |
Browsing IEF Shelves Close shelf browser
Resumen.
This article debates the extent to which the controlled foreign company (CFC) rules in the Anti-Tax Avoidande Directive (ATAD) are compatible with the EU fundamental freedoms. It considers why the ATAD CFC rules may restrict those freedoms and whether that conflict may be resolved by recourse to the general principle of abuse of law, which may prevent a taxpayer from relying on a fundamental freedom and thus prevent the restriction from arising, or to the rule of reason, which may serve to justify the restriction. The paper considers whether these may be treated as separate doctrines and some implications of doing so. The paper reaffirms that the ATAD CFC rules may be considered to be incompatible with the fundamental freedoms as interpreted in Cadbury Schweppes. Then, by reference to recent European Court of Justice decisions, the paper interprets new standards of artificiality and reassesses the aforementioned incompatibility.
Click on an image to view it in the image viewer
There are no comments for this item.