Critical Review of the ATAD Implementation: Implementation of the EU ATAD in Spain: Outstanding Issues of a Partial Transposion

Abstract

The purpose of this work is to critically analyse the transposition of the Anti-tax Avoidance Directive (ATAD) (1 and 2) into the Spanish tax system. To do so, a distinction is made between the rules that are transposed (exit taxation, controlled foreign companies (CFCs) and hybrid mismatches) and those that are not (limitation on interest deductions and general anti-abuse clause). This analysis will highlight the main differences between the directive and Spanish law and examine whether such discrepancies may be the source of problems of application and even uncertainties about the alignment of Spanish regulations to the directive itself or to EU primary law. Tax avoidance, corporate taxation, general anti-abuse clause, limitation on interest deductions, exit taxation, controlled foreign companies, hybrid mismatches, fundamental freedoms, proportionality, legal certainty.