European Tax Law Research Articles

Eine europäische Bemessungsgrundlage für die Körperschaftsteuer? Konzeption und ordnungsökonomische Analyse / Conceptual design and constitutional economics analysis of a European tax base for corporate taxation

Zusammenfassung Die Europäische Kommission macht sich seit geraumer Zeit für eine gemeinsame Bemessungsgrundlage für in Europa steueransässige Körperschaftsteuersubjekte stark. Mit dem Richtlinienentwurf vom 16.3.2011 liegt nun ein konkreter Vorschlag zu einer einheitlichen steuerlichen Gewinnermittlung vor, um vom Ecofin-Rat der nationalen Wirtschafts- und Finanzminister angenommen zu werden - die Steuerwelt wartet gespannt auf eine Beschlussfassung. Ein wichtiges Ziel dieser partiellen Harmonisierung ist, die grenzüberschreitende Verrechnung von Steuergewinnen und -verlusten zu ent-problematisieren, wobei durch eine Formelzuteilung das endgültige Besteuerungsrecht bei den Mitgliedstaaten verbleiben soll. Der vorliegende Beitrag möchte die technische Diskussion um das konkrete GKKB-Design um Grundsätzliches zu dieser angedachten Änderung des europäischen Steuerrechtsgefüges ergänzen. Die ordnungsökonomische Sicht soll verdeutlichen, dass die GKKB ein begrüßenswerter Eingriff für mehr Steuertransparenz und allokative Effizienz durch eine nutzungsorientierte Erhebung wäre, der körperschaftsteuerliche Standortwerbung weiterhin zuließe.

European Tax Law Concepts in the ECJ's Case Law: The Concepts of Tax, Valid Commercial Reasons, Withholding Tax and Centre of Main Interests of the Debtor

This paper analyzes the development on the ECJ’s case law of four European tax law concepts, made possible by the autonomous interpretation of European law towards the national legal orders. The European law concepts of tax vs. fee, valid commercial reasons on the Merger Directive, withholding tax on the Parent-Subsidiary Directive and center of main interests of the debtor on the Insolvency Regulation are analyzed.

Abuse of Law in European Tax Law: An Overview and Some Recent Trends in the Direct and Indirect Tax Case Law of the ECJ – Part 2

This article examines the right of Member States to combat abuse, as defined in ECJ case law, in particular, the balance between enforcement of the principle of legal certainty, the right to choose the most favourable fiscal route and the right of states to combat tax avoidance. Part 1, which was published in European Taxation 6 (2013) addressed the subjective and objective tests for establishing abuse, the concept of economic reality versus wholly artificial arrangements, the idea of a general principle of community law and the different levels of abuse. Part 2 analyses how specific an anti-abuse provision should be, the burden of proof, tax jurisdiction shopping and the consequences of abuse.

Abuse of Law in European Tax Law: An Overview and Some Recent Trends in the Direct and Indirect Tax Case Law of the ECJ – Part 1

This article examines the right of Member States to combat abuse, as defined in ECJ case law, in particular, the balance between enforcement of the principle of legal certainty, the right to choose the most favourable fiscal route and the right of states to combat tax avoidance. Part 1 addresses the subjective and objective tests for establishing abuse, the concept of economic reality versus wholly artificial arrangements, the idea of a general principle of community law and the different levels of abuse. Part 2, to be published in European Taxation 7 (2013), analyses, inter alia, how specific an anti-abuse provision should be, the burden of proof, tax jurisdiction shopping and the consequences of abuse.

Free Movement of Capital between EU Member States and Third Countries: How Far Has the Door Been Closed?

Among the many recent developments in European tax law that are worthwhile being highlighted and debated, there is one area that is of very high relevance in legal practice but has taken some twists and turns in the European Court of Justice’s (ECJ’s) case law, which have left both academics and practitioners in a state of confusion, and that is the scope of the free movement of capital in relation to non-EU countries. As a matter of fact, the problem has already been existing since 1 January 1994, the day on which the new provisions of the EC Treaty on capital movements entered into force (originally Article 73(a)–73(h) in the Maastricht version; now Articles 56–60). Not only did this step make the 1988 Directive on the liberalization of capital movements largely redundant for intra-EU situations between Member States, but it also reached beyond the EU’s outer frontiers, since Article 56(1) EC explicitly prohibits ‘all restrictions on the movement of capital between Member States and between Member States and third countries’.

The Autonomous Interpretation Method in International Tax Law: The 'Atypical' Silent Partnership under the German-British Double Taxation Treaty

An abridged version of this paper has been published in German by Europaische Zeitschrift fur Wirtschaftsrecht European Journal of Business Law (EuZW) in November 2008. Dr Andreas Knebel is a partner with White & Case in Frankfurt Main, Germany. An English version has been published in 2010 in Intertax, Vol.38 (13), 136-152. The authors explore the current state of the case law in Germany and England regarding the silent partnership in international taxation. The main concern is the interpretation and application of the Double Taxation Treaty as a bilateral convention: how will German courts and fiscal authorities react to the Memec case series in view of existing case law on DTTs with other countries? Will they respect the English view on the qualification proceeds from a German ''atypical'' silent partnership under the DTT or will they continue to apply an outdated and arguably ill founded reasoning? A recent German case involving the DTT with the US shows a move into the right direction. The discussion wants to contribute to the evolution of a truly and much needed international legal doctrine within an ever-expanding European Union given the European tax law is still only rudimentary present in the acquis. The text is in German, a summary of the thoughts can be found in the International commercial harmonization and national resistance - the development and reform of transnational commercial law and its application within national legal culture (2009) in Theory and Practice of Harmonization, forthcoming (Chapter in WG Hart Workshop 2008 conf. paper collection June 2011 by Edward Elgar publishers).

The design and structure of general anti-tax avoidance regimes

In 2007, Prof. Graeme Cooper of Sydney Law School in Australia was appointed to the PricewaterhouseCoopers Chair of International and European Tax Law at the European Tax College, a joint venture of Katholieke Universiteit Leuven in Belgium and Tilburg University in the Netherlands. This article is the Inaugural Address given by Prof. Cooper on 23 September 2008, as revised for publication. It explores the problem of defective anti-avoidance rules and the possibility to devise a better form of rule than those currently on display.

Conference on Legal Remedies in European Tax Law

The following article stems from the recent conference entitled ‘Legal Remedies in European Tax Law’ organized by Vienna University of Economics and Business in co–operation with the II University of Naples and the University of Salerno at the Amalfi Coast in Italy on 12–13 June 2008. At the two–day conference distinguished tax academics and practitioners from 14 European countries discussed various issues dealing with ‘Legal Protection of European Rights: the Procedures before National and European Courts’ and ‘Access to Justice’.

The Transfer of Assets from a Permanent Establishment to its General Enterprise in the Light of European Tax Law

The Transfer of Assets from a Permanent Establishment to its General Enterprise in the Light of European Tax Law

Treatment of permanent establishments and subsidiaries under EC law: towards a uniform concept of secondary establishment in European tax law?

Treatment of permanent establishments and subsidiaries under EC law: towards a uniform concept of secondary establishment in European tax law?

V.A.T., Taxation and Prostitution: Feminist Perspectives on Polok

Debates concerning the taxation of prostitution have occurred in taxation law and in feminist literature. This article will integrate the case of Polok v. C.E.C. [2002] E.W.H.C, 156; [2002] S.T.C. 361, within the feminist legal canon. The case is discussed in the context of the argument of the European doctrine of fiscal neutrality, which dictates that, regardless of legality as amongst member states, if an activity is levied to V.A.T. in one member state, V.A.T. should be levied on it in all member states. The doctrine of sovereignty accepts the possibility that the integrity of the V.A.T. system may be compromised by the levying of tax on illegal activities, in terms of the cooperation between tax and other aspects of the U.K.’s legal system. European law, feminist law, commodification and the marketplace are all considered within the context of these principles. The article also considers the place of Polok within standard feminist texts on prostitution. Different paradigms of prostitution define different aspects of prostitution as ‘problems’, and the article considers the implications within a feminist reconstruction of Polok of this. The article suggests that the challenge for a feminist analysis of Polok is to remain within the realm of European tax and competition law, and to render the perspective of the employees of the Polok taxpayers part of the substance of the deliberations of the case.

Impact of European tax law on tax treaties with third countries

Impact of European tax law on tax treaties with third countries

Most-favoured-nation Clause in European Tax Law?

Most-favoured-nation Clause in European Tax Law?

Ben Terra and Peter Wattel, European Tax Law, Deventer, Boston: Kluwer Law and Taxation Publishers (1993) 445 pages, Index

Ben Terra and Peter Wattel, European Tax Law, Deventer, Boston: Kluwer Law and Taxation Publishers (1993) 445 pages, Index

Ben Terra and Peter Wattel, European Tax Law, Deventer, Boston: Kluwer Law and Taxation Publishers (1993) 445 pages, Index

Ben Terra and Peter Wattel, European Tax Law, Deventer, Boston: Kluwer Law and Taxation Publishers (1993) 445 pages, Index

The abuse of law in the framework of the European tax law

The abuse of law in the framework of the European tax law