Abuse of law by a Member State when designing a tax measure by Stan Stevens
By: Stevens, Stan
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Material type: 
ArticleSubject(s): DERECHO TRIBUTARIO | DERECHO COMUNITARIO EUROPEO | INCUMPLIMIENTO DEL DERECHO COMUNITARIO | ABUSO DEL DERECHO | AYUDA ESTATAL | UNION EUROPEA
In:
EC Tax Review v. 31, n. 5, October 2022, p. 260-272Summary: When Member States design tax measures, they have to comply with EU law. In this article the question is discussed whether a Member State has the liberty to intentionally design a domestic rule so that it falls outside the scope of the freedom of capital and prevent scrutiny in respect of third states by the Court of Justice of the European Union. This question is investigated by using two Dutch rules as a case study. The author argues that the legislature walks a thin line. On the one hand there is a risk that the legislature is circumventing the application of the fundamental freedoms in an abusive way while on the other hand using an arbitrary criterion in a rule to distinguish between comparable cases could lead to the conclusion that a Member State has implemented a selective tax measure and thus granted state aid. The author concludes that the Dutch liquidation loss rule infringes EU law
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| Artículos | IEF | IEF | OP 2141-B/2022/5-4 (Browse shelf) | Available | OP 2141-B/2022/5-4 |
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| OP 2141-B/2022/5-1 VAT goes virtual | OP 2141-B/2022/5-2 Free movement of persons between the EU and Switzerland | OP 2141-B/2022/5-3 Fictitious interest and dividends under tax treaties and the EU Directives | OP 2141-B/2022/5-4 Abuse of law by a Member State when designing a tax measure | OP 2141-B/2022/5-5 "Provisions primarily of a fiscal nature" | OP 2141-B/2022/5-6 Case C-368/21 | OP 2141-B/2022/6 EC Tax Review |
Resumen.
When Member States design tax measures, they have to comply with EU law. In this article the question is discussed whether a Member State has the liberty to intentionally design a domestic rule so that it falls outside the scope of the freedom of capital and prevent scrutiny in respect of third states by the Court of Justice of the European Union. This question is investigated by using two Dutch rules as a case study. The author argues that the legislature walks a thin line. On the one hand there is a risk that the legislature is circumventing the application of the fundamental freedoms in an abusive way while on the other hand using an arbitrary criterion in a rule to distinguish between comparable cases could lead to the conclusion that a Member State has implemented a selective tax measure and thus granted state aid. The author concludes that the Dutch liquidation loss rule infringes EU law
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