The Principle of Legality in the Context of Danish Tax Law

Abstract

The authors discuss the Danish legislator’s taxing powers in the context of the principle of legality, particularly the non-delegation doctrine enshrined in the constitution, which prescribes that no taxes shall be imposed, altered, or repealed except by statute. While a few constitutional provisions are seen as important with respect to Danish tax law, the practical significance of these provisions may at times have been overestimated in the literature. The authors explain that section 43 of the Danish constitution is the most important constitutional rule on tax as it provides a constitutional prohibition on legislative delegation in the tax area. In the view of the authors, the courts have approached the non-delegation doctrine pragmatically, accepting important modifications regarding both the practical realities of lawmaking and the long-standing practice of delegation of certain taxing powers to the municipalities. Further, the authors reject the notion that a particular requirement for a clear statutory basis for imposing tax should follow from section 43 of the constitution. Finally, the authors touch upon the recently adopted statutory general anti-avoidance rules and argue that these new provisions should not be considered unconstitutional.