EATLP 2016 Max Planck Institute/ Ludwig Maximilian University of Munich

Transcription

1 EATLP 2016 Max Planck Institute/ Ludwig Maximilian University of Munich Tax Avoidance Revisited: Exploring the Boundaries of Anti-Avoidance Rules in the EU BEPS Context Questionnaire for National Reporters: Ana Paula Dourado (University of Lisbon) 1

2 Introductory Explanation In order to avoid a fragmented report in the form of (short) answers to questions, the national report should not be written in question and answer style, but in the form of a full text survey of the Tax Avoidance Revisited in your country following the order of the questions. In addition, please quote the relevant legal sources (provisions of your tax legislations, academic literature etc..) upon which you rely to answer the questions and take the Instructions for Authors on behalf of IBFD into account during writing of the national report. I. The Meaning of Avoidance and Aggressive Tax Planning and the BEPS Initiative 1) The Meaning of Tax Avoidance in National Legal Systems 1.1. Is there a legal definition of tax avoidance in your legal system? 1.2. Do administrative regulations clarify the meaning of tax avoidance in your legal system? 1.3. Are there tax rulings in your legal system? If yes, what impact do those tax rulings have on avoidance? 1.4. Is there case-law on the meaning of tax avoidance and is it settled? Please refer to the existing case-law If the judicial competence is also exercised by bodies that are not strictly judicial (arbitration courts or economic-administrative instances) is the case-law consistent among the different bodies with judicial competence? 1.6. Is the legal, administrative and/or case-law definition/meaning of tax avoidance influenced by its meaning in other jurisdictions, OECD soft law or the case-law of the ECJ? Please distinguish between/among the different influences and discuss them Has BEPS had any repercussion on the meaning of avoidance in your legal system? 1.8. If the answer to 1.7. is yes, what type of repercussion has BEPS had in legislative amendments, in the exercise of competence by the tax administration, and/or in the judicial interpretation by courts? Please discuss examples. 2

3 2) The Meaning of Tax Planning, Abusive Tax Planning and Aggressive Tax Planning in National Legal Systems 2.1. Is there a legal definition of tax planning, abusive tax planning or aggressive tax planning in your legal system? 2.2. Do administrative regulations clarify the meaning of tax planning, abusive tax planning or aggressive tax planning in your legal system? 2.3. Are there tax rulings in your legal system? If yes, what impact do those rulings have on tax planning, abusive tax planning or aggressive tax planning? 2.4. Is there case-law on the meaning of tax planning, abusive tax planning or aggressive tax planning and is it settled? Please refer to the existing case-law Is there an overlap among the aforementioned concepts in your legislation, tax regulations and / or case-law? 2.6. In the event judicial competence is also exercised by bodies that are not strictly judicial bodies (for instance arbitration courts or economic-administrative), is the caselaw consistent among the different bodies that exercise judicial competence? 2.7. Is the legal, administrative and/or case-law definition/meaning of tax planning, abusive tax planning or aggressive tax planning influenced by their meaning in other jurisdictions, OECD soft law or the case-law of the ECJ? Please distinguish between/among the different influences and discuss them Has BEPS had any repercussion in the meaning of tax planning, abusive tax planning or aggressive tax planning in your legal system? 2.9. If the answer to 2.8. is yes, what type of repercussion has BEPS had in legislative amendments, in the exercise of competence by the tax administration, and/or in the judicial interpretation by courts? Please discuss examples. II. The Reaction to Avoidance and Aggressive Tax Planning in the BEPS Context 1. Domestic General Anti-Avoidance Rules (GAARs) If your country is an EU Member State, consider the EC Recommendation C-(2012) 8806 of 6 December 2012 in your answers below. The aforementioned EC Recommendation makes reference to Aggressive Tax Planning ( ATP") and proposes 3

4 the adoption of several of a GAAR in domestic laws and a subject-to-tax clause in bilateral tax treaties. The EC Recommendation proposes that EU Member States adopt a GAAR in their domestic law that reads as follows: An artificial arrangement or an artificial series of arrangements which has been put into place for the essential purpose of avoiding taxation and leads to a tax benefit shall be ignored. National authorities shall treat these arrangements for tax purposes by reference to their economic substance Is there a GAAR in your national legal system? 1.2. If the answer to 1.1. is yes, do you consider it similar to the GAAR proposed by the EC? 1.3. If the answer to 1.1. is yes, and your country is an EU or EEA Member State, do you consider your national GAAR compatible with the EU/EEA concept of abuse? 1.4. If the answer to 1.1. is yes, explain whether the following elements (tests) are part of your national GAAR: a) main objective test (the accrual of a tax advantage the grant of which is contrary to purpose of the legal provision); b) the obtaining of a tax advantage as the essential aim of the transactions concerned; c) complementary business purpose test (under international tax law) or the genuine economic activity test (under EU law); d) subjective element, consisting of the intention to obtain a tax advantage; e) the principle of proportionality Explain how the aforementioned tests, in case they are a part of your national GAAR, are interpreted by your courts Has your national GAAR been successfully applied by your tax administration or do your domestic courts often restrict its application? If the latter occurs, please explain the reasons for the unsuccessful application of your national GAAR If the answer to 1.1. is yes, and your country is an EU Member State, has your national GAAR already been or will be replaced by the GAAR proposed by the EC? 1.8. If the answer to 1.1. is negative, will the proposed GAAR be introduced by your Member State? 4

5 2. EC Recommendation C-(2012) 8806 of 6 December 2012 and subject-to-tax rule If your country is an EU Member State, consider the same EC Recommendation (8806) proposing a subject-to-tax rule aimed to deal with double non taxation: 3.2..Member States are encouraged to include an appropriate clause in their double tax convention ( DTC ) it could read as follows: `Where this DTC provides that an item of income shall be taxable only in one of the Contracting State ( CS ), the other CS shall be precluded from taxing such item if this item is subject to tax in the first CS Where, with a view to avoid double taxation through unilateral national rules, Member States provide for a tax exemption in regard to a given item of income sourced in another jurisdiction, in which the item is not subject to tax, Member States are encouraged to ensure that the item is taxed. 3.4.an item of income should be considered to be subject to tax where it is treated as taxable by the jurisdiction concerned and is not exempt from tax, nor benefits from a full tax credit or zero-rate taxation Has your Member State introduced a subject-to-tax rule as proposed by the EC in its DTC s? 2.2. If the answer to 2.1. is negative, is your Member State planning to introduce a subject-to-tax rule as proposed by the EC? III. Transfer Pricing Rules, GAARs, Specific Anti-Avoidance Rules (SAARs) and Linking Rules 1. Are your national transfer pricing ( TP ) rules often used to prevent or combat avoidance? 2. Do your TP rules often raise litigation? 3. If the answer to 2 is yes, is there case-law on the application of your TP rules? Please describe and critically analyze that case-law. 4. Do your double taxation conventions DTC s include the LOB rules? Please describe the main elements of your LOB rules and refer to the DTCs in which they are included. 5

6 5. Does your tax legislation include CFC rules? Please describe the main elements of your CFC rules. 6. Did your country introduce linking rules as recommended in OECD/BEPS Action 2? 7. Does your tax legislation include limits on the deduction of interest? Please describe the main elements of your domestic rules limiting deduction of interest. 8. Do you have any other SAARs? Please refer to them and describe their main elements. IV. Application of GAARs, TP Rules and SAARs 1. How do GAARs, TP rules, SAARs and linking rules interact in your national legal system? 2. Is there a hierarchy, coordination or overlapping of measures? 3. Are there procedural rules underlying application of your national GAAR, TP rules and/or SAARs? 4. If your answer to 3 is yes, please describe those procedural rules and how they have been applied by the tax administration and courts. 6