Article_Tax Abuse and Legal Pluralism Flashcards
the concepts of abuse adopted at EU and OECD level do not coincide completely
True
As laws are implemented and enforced internationally very often, in case of conflict, different conflict rules will not be applicable,
Yes they will as the laws are implemented and enforced by different states with different cultures.
What is the crux of what makes EU tax law and international tax treaty law incompatible
That international tax treaty law such as the OECD BEPS not only targets wholly artificial arrangements but also those that are partly so which has ambigous coercive consequences and goes against the principle of legal certainty in the EU.
Can EU member states tax code go against the fundamental freedoms of the EU f.ex freedom of establishment
No, in accordance with the principle of neutrality
EU notion of abuse also concerns arrangements that reflect a certain
level of substance
True (so legal certainty?)
MLI has a broader scope of tax abuse than the EU
True
What is required to be considered to be abusive under Article 7(1) of the MLI
To establish a subsidiary for other reasons than core economic activities
If there are economic benefits for a subsidiary but the tax benefits outweigh its evonomic value is it abuse in the EU
generally not in the EU but yes for OECD
What are the consequences of tax abuse under the MLI rules
that the benefits should be denied although as the benefit is sometimes hard to calculate it is a breach of the proportionality
test under the case law of the EU Court of Justice
Why are the MLI rules not in line with the EU principle of legual certainty
because its scope is not sufficiently clear at the outset. As a
consequence of this uncertainty, this provision also grants a too broad discretionary power to tax administrations.
according to the EU Court of Justice, when a non-resident parent company only manages its subsidiaries’ assets or its income exclusively derives from such management activity there is automatically an instance of abuse.
False, it is not automatically an instance of abuse
The BEPS project and the Danish cases are a begining to synthesis between EU and OECD rules
True
