The General Anti - Abuse Rule of the Anti - Tax Avoidance Directive ananalysis against the wider perspective of the European Court of Justice's case law on abuse of EU law Luc De Broe & Dorien Beckers
By: De Broe, Luc
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Contributor(s): Beckers, Dorien.
Material type: 
ArticlePublisher: 2017Subject(s): ABUSO DEL DERECHO | ABUSO DE TRATADOS | EVASION FISCAL | EROSIÓN DE LA BASE IMPONIBLE Y TRASLADO DE BENEFICIOS | PREVENCIÓN | UNION EUROPEA | JURISPRUDENCIA | ELUSION FISCAL | LEGISLACION COMUNITARIA
In:
EC Tax Review v. 26, n. 3, June 2017, p. 133-144Summary: A general anti-tax avoidance rule (GAAR) has been adopted as part of the Anti-Tax Avoidance Directive of 12 July 2016 (ATAD).This article first sets out the concept of abuse of (tax) law and its role within the European Union legal order, based on the jurisprudence of the European Court of Justice (section 2). Subsequently, it establishes a recent trend towards mandatory GAAR codification. The traditional approach whereby secondary EU laws merely authorizes national GAARs to combat abusive practices isreplaced by an obligation for Member States to eliminate abusive tax practices (section 3). The mandatory GAAR thatwas included inthe amended Parent-Subsidiary Directive of 2015 seems to have set a precedent which the ATAD has extrapolated to the corporateincome taxation of the Member States. Finally, section 4 provides a critical analysis of the scope, requirements and legal consequencesof the ATAD GAAR, whereby questions and concerns are raised showing that, despite its remarkably swift adoption, interpretation and implementation of the new provision are far from self-evident.
| Item type | Current location | Home library | Call number | Status | Date due | Barcode |
|---|---|---|---|---|---|---|
| IEF | OP 2141-B/2017/3-4 (Browse shelf) | Available | OP 2141-B/2017/3-4 |
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| OP 2141-B/2017/3-1 Harmonizing Anti - Tax Avoidance Rules | OP 2141-B/2017/3-2 The interest limitation rule in the Anti - Tax Avoidance Directive ( ATAD ) and the net taxation principle | OP 2141-B/2017/3-3 Exit taxation | OP 2141-B/2017/3-4 The General Anti - Abuse Rule of the Anti - Tax Avoidance Directive | OP 2141-B/2017/3-5 CFC rules and Anti - Tax Avoidance Directive | OP 2141-B/2017/3-6 Hybrid mismatches under the ATAD I and II | OP 2141-B/2017/3-7 Taking EU fundamental freedoms seriously |
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A general anti-tax avoidance rule (GAAR) has been adopted as part of the Anti-Tax Avoidance Directive of 12 July 2016 (ATAD).This article first sets out the concept of abuse of (tax) law and its role within the European Union legal order, based on the jurisprudence of the European Court of Justice (section 2). Subsequently, it establishes a recent trend towards mandatory GAAR codification. The traditional approach whereby secondary EU laws merely authorizes national GAARs to combat abusive practices isreplaced by an obligation for Member States to eliminate abusive tax practices (section 3). The mandatory GAAR thatwas included inthe amended Parent-Subsidiary Directive of 2015 seems to have set a precedent which the ATAD has extrapolated to the corporateincome taxation of the Member States. Finally, section 4 provides a critical analysis of the scope, requirements and legal consequencesof the ATAD GAAR, whereby questions and concerns are raised showing that, despite its remarkably swift adoption, interpretation and implementation of the new provision are far from self-evident.
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