EC Tax Review最新文献

{"title":"Company in Organization Under EU Parent-Subsidiary and Merger Directives","authors":"W. Morawski, Krzysztof Lasiński-Sulecki, B. Brzeziński","doi":"10.54648/ecta2020040","DOIUrl":"https://doi.org/10.54648/ecta2020040","url":null,"abstract":"","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47069015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax Treatment of the PEPP: The New Pan-European Personal Pension Product","authors":"B. Dieleman","doi":"10.54648/ecta2020037","DOIUrl":"https://doi.org/10.54648/ecta2020037","url":null,"abstract":"Regulation 2019/1238 concerning a pan-European personal pension product has entered into force on 14 August 2019. As a result, it \u0000becomes much easier for EU citizens to contribute to a personal pension product on a voluntary basis. It is expected that as from \u00002021, financial institutions are able to offer a pan-European personal pension product (PEPP) to EU citizens. The tax treatment of \u0000the PEPP is not included in the Regulation. However, ECJ case law on tax treatment of private pension products is applicable. In this \u0000article, the tax treatment of the PEPP is analysed. The focus of this article is on tax related aspects in case of contributions to a PEPP \u0000in one Member State, while receiving PEPP retirement benefits in another Member State. The article among other discusses granting \u0000tax incentives to the PEPP by Member States, taxation of PEPP retirement benefits in case a tax treaty is applicable and taxation in \u0000case the accumulated capital of a PEPP or the saver moves to another Member State.","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47522956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Article 116 TFEU – The Nuclear Option for Qualified Majority Tax Harmonization?","authors":"J. Englisch","doi":"10.54648/ecta2020007","DOIUrl":"https://doi.org/10.54648/ecta2020007","url":null,"abstract":"Taxation is one of the few policy areas left after the Lisbon Treaty where in principle, decision-making still requires unanimity in Council, and where the EU Parliament is little more than a spectator. In a Union of twenty-seven Member States – Brexit won’t make much of a difference in this regard – this status quo frequently results in an impasse over tax reform proposals, and it tends to petrify existing EU tax legislation. Moreover, the special legislative procedure which sidelines Parliament diminishes the democratic legitimacy of legislation in an area where democratic accountability should be paramount. In an attempt to break legislative deadlocks, the Juncker Commission in January 2019 unveiled its ‘roadmap for a progressive and targeted transition to qualified majority voting (QMV)’ in EU taxation policy, and proposed using the ‘passerelle clause’ in Article 48 (7) Treaty on European Union (TEU) to this effect However, the adoption of a decision to amend the EU Treaty under this procedure requires, in itself, unanimity in the European Council, and it very quickly emerged that this would not be a realistic option in the foreseeable future. Against this background, the new Commission President von der Leyen has now pledged to ‘make full use of the clauses in the Treaties that allow proposals on taxation to be adopted by co-decision and qualified majority voting’ to deliver on her ambitious tax policy agenda. As the Commission itself had previously acknowledged, the (almost) only existing Treaty provision that might lend itself to this kind of revolutionary approach is Article 116 Treaty on the Functioning of the European Union (TFEU). But is Article 116 TFEU really the nuclear option for QMV in EU taxation law, occasionally invoked already in the past but never exercised so far? And if so, would it be wise for the EU Commission to draw this option now? Art. 116 TFEU addresses situations where a difference between normative provisions in Member States is distorting the conditions of competition in the internal market and where the ensuing distortion ‘needs to be eliminated’. Beyond the necessary internal market dimension, this competence clause is not limited in substantive scope and it therefore potentially also covers tax legislation. This notwithstanding, the criteria for legislation stipulated in Article 116 TFEU are stricter than those laid down in Article 113–115 TFEU in several regards. Unlike the latter provisions, Article 116 TFEU cannot be relied on to tackle distortions that do not stem from the pursuit of different regulatory approaches or taxation concepts by several Member States, but merely arise from the parallel application of essentially identical but uncoordinated national tax regimes. Moreover, the diverging national provisions must already be in force. The mere risk of a possible distortion due to projected legislation is dealt with separately in Article 117 TFEU, which does not provide a legal basis","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44895592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Some Thoughts to Understand the Court of Justice Recent Case-Law in the Danmark Cases on Tax Abuse","authors":"J. Rodriguez","doi":"10.54648/ecta2020009","DOIUrl":"https://doi.org/10.54648/ecta2020009","url":null,"abstract":"Abuse of law is a general principle of EU law and has direct effect and priority over national law.National authorities have to apply it without the need of a specific provision of EU law. It is a self-protection tool and guarantees that the competences of the EU do not extend beyond their limits. This principle is the same in all areas of EU law. It has an objective and a subjective element. The beneficial owner clause addresses specific forms of tax abuse. As such, it is embraced by the more general principle of abuse of law. Under this view, there is not a need to codify the principle in a legal provision. In this case, it is required to prove the intention of abuse.When codified by law, it is transformed into a requirement to apply a specific tax regime: the tax administration must prove the objective element of abuse but not the animus fraudis. In the interest and royalties directive plays this role. In the parent-subsidiary directive can be invoked as an anti-abuse clause, but the intention to defraud has to be proved.\u0000Abuse, general principle, EU law, EU competence, sovereignty, objective element, subjective element, proof, beneficial owner, OECD materials","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42283372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Recent Restrictive ECJ Approach to Exit Tax and the ATAD Implementation","authors":"Giulia Letizia","doi":"10.54648/ecta2020004","DOIUrl":"https://doi.org/10.54648/ecta2020004","url":null,"abstract":"The article discusses the development of the European Court of Justice approach to exit tax and the perspective adopted by ATAD (Anti-Tax Avoidance Directive) exit tax provisions. \u0000Following a first European Court of Justice (ECJ) orientation according to which Member States were allowed to tax corporations on latent capital gains at the time of the transfer of the place of effective management to another Member State, but deferring the collection until the actual realization of the assets to five yearly instalments, the more recent ECJ approach allows an exit tax imposed upon the transfer regardless of the actual realization, payable over a five-year period. \u0000On the lines of the second ECJ approach, ATAD provides a mandatory harmonized exit tax imposed at the moment of the exit, allowing a deferral over five yearly instalments. It represents the first form of income taxation provided by a EU Directive, which does not take into account if some EU Member State did not have any exit tax. \u0000The ECJ shifting and the restrictive ATAD approach on exit tax may determine a wider rethinking of the movement of companies within the EU having the ATAD exit tax provision partially emptied the content of the freedom of establishment principle.\u0000Mandatory harmonized exit tax, ATAD, Corporate taxpayers, Latent capital gains, Freedom of establishment principle, ECJ shifting, Income taxation, Deferral of taxation, Discrimination, Income inclusion approach","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47563340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does the European Union Primary Law Require Member States to Make Corresponding Adjustments?","authors":"A. Soom","doi":"10.54648/ecta2020011","DOIUrl":"https://doi.org/10.54648/ecta2020011","url":null,"abstract":"Although for the time being the directive on tax dispute resolution mechanisms in the European Union has been transposed to the national legislation of majority of Member States and there is an effective solution for transfer pricing disputes, the taxpayers may need a faster solution for double taxation arising from transfer pricing adjustments.\u0000As the double tax burden undermines the internal market, this article analyses whether the European Union primary law could provide taxpayers with a solution. The potential requirement to make a corresponding downward adjustment is analysed in the light of freedom of establishment; moreover, considering the Belgium excess profit scheme, it is also examined whether State aid rules might require a corresponding upward adjustment.\u0000Transfer pricing, corresponding adjustment, Belgium excess profit, Article 9, upward adjustment, downward adjustment, profit shifting, double taxation, European Union primary law, OECD","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44273397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rise and Decline of the Westphalian Principle in Taxation: The Web Tax Case","authors":"M. Greggi","doi":"10.54648/ecta2020002","DOIUrl":"https://doi.org/10.54648/ecta2020002","url":null,"abstract":"The article analyses the crucial impact that the digital economy is having on international taxation and argues that the traditional taxing rules are inadequate to address the way that multinational enterprises are conducting business on the Internet and how value is created on the Web. The cornerstone of this analysis consists of the observation that, while the power of the states to tax is intrinsically connected to territory (thus, to a physical element), the Internet economy is not as it takes places in a virtual space (a Terra Incognita) which is, in legal terms, still uncharted.\u0000This situation is challenging the intimate connection between the power to tax and the territory state Sovereignty can be exercised on, superiorem non recognoscens. This is the Westphalian Principle, as commonly understood in History, and it is the pillar states have been built on since the mid-seventeenth century, in Europe. This article eventually considers the most recent development to overtake this empasse, in particular, the digital tax proposal as suggested by the European Commission in 2018. In this respect, it concludes that, while the European strategy is positive in terms of policy, in a purely legal perspective, it might initiate possible retaliation from qualified international stakeholders (including States such as the US) that would see their potential taxable base eroded by foreign unilateral measures and without any previous agreement in this sense.\u0000e-commerce, digital taxation, territoriality, income taxation, net neutrality, double taxation, tax competition, sovereignty, base erosion, BEPS.","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42927027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax Abuse and Legal Pluralism: Towards Concrete Solutions Leading to Coordination Between International Tax Treaty Law and EU Tax Law","authors":"Carla De Pietro","doi":"10.54648/ecta2020010","DOIUrl":"https://doi.org/10.54648/ecta2020010","url":null,"abstract":"As will be demonstrated in this article, the concepts of abuse adopted at EU and OECD level do not coincide completely.\u0000As a result of these differences, conflicts may concretely arise between the EU and international obligations held by the same EU Member State. Furthermore, due to legal pluralism (i.e. the fact that each legal system, in principle, is developed and, therefore, functions autonomously on a global level) very often, in case of conflict, different conflict rules will be applicable, without the possibility of guaranteeing coordination between international tax treaty law and EU tax law.\u0000In the absence of common coercive solutions, the author argues that coordination between international tax treaty law and EU tax law requires a dialectical approach through which conflicts can be managed. Therefore, conflicts become an opportunity for discussion and negotiation in order to pursue – step-by-step – solutions conciliating the international and the EU tax systems. Indeed, the achievement of complete coordination could not be immediate, but require intermediate steps. Any dialectical approach requires phases of compromise. This is implicit in the concept of managing conflicts on which legal pluralism is based.\u0000Tax Abuse, Legal Pluralism, Coordination, tax treaties, EU law, conflict rules, double taxation, fundamental freedoms, artificial arrangement, proportionality, legal certainty, dialectical approach, PPT rule","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45118588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wrong Forma Mentis? The ECtHR’s Tax Judgment in Formela","authors":"R. Attard","doi":"10.54648/ecta2020006","DOIUrl":"https://doi.org/10.54648/ecta2020006","url":null,"abstract":"test\u0000Human Rights, Right to a Fair Hearing, Right to Property, Article 1 of Protocol 1 ECHR, Article 6 ECHR, European Convention on Human Rights, European Charter of Human Rights, Margin of appreciation, Fiscal Stability, Value Added Tax.","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43321048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparative Analysis of the General Anti-Abuse Rule of the Anti-Tax Avoidance Directive: An Effective Tool to Tackle Tax Avoidance?","authors":"Cihat Öner","doi":"10.54648/ecta2020005","DOIUrl":"https://doi.org/10.54648/ecta2020005","url":null,"abstract":"The primary aim of this article is to question whether the general anti-abuse rule (GAAR) of Anti-Tax Avoidance Directive (ATAD) is an effective tool to tackle tax avoidance. By using a comparative technique as a method, other directives that include a GAAR will be analysed as a companion to the ATAD to identify whether there is a common understanding of the concept of abuse of tax laws within the EU legal order. Then the general consequences of the application of the GAAR of the ATAD will be exposed. The difficulties which could be encountered in the application procedure will be explained around some potential scenarios, based on simple models developed by the author.\u0000Tax Avoidance, Abusive Tax Practices, Artificial/Genuine Arrangement(s), Main Purpose(s) Test, Tax Advantage, General Anti-abuse Rule(s) (GAARs), Anti-Tax Avoidance Directive (ATAD), Interest-Royalties Directive, Merger Directive, Parent- Subsidiary Directive.","PeriodicalId":43686,"journal":{"name":"EC Tax Review","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45282503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}