Comparative Tax Law. Victor Thuronyi KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

Transcription

1 Comparative Tax Law Victor Thuronyi ff KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

2 TABLE OF CONTENTS Biographical Note Preface Acknowledgments Abbreviations xii xiii xvi xvii CHAPTER1 THE COMPARATIVE APPROACH In General Comparative Method Legal Families Economic Classification and the Tax Mix ComparingtheStudyofTax 12 CHAPTER 2 OVERVIEW Convergence Complexity Legislative Process Investment Incentives CountryFocus In General Commonwealth Family American Family French Family Latin American Family Transition And Post-Conflict Countries Northern European Family Southern European Family Japanese/Korean Family Miscellaneous European Union 42

3 vi Comparative Tax Law CHAPTER3 TAXANDTAXES WhatlsaTax? Direct vs. Indirect Taxes The Panoply oftaxes 57 CHAPTER4 THE LEGAL CONTEXT TaxlawasPart of the Legal System Sources of Tax Law Constitutional Law In General Overview France Germany United States Tax Must be Imposed by Law (Principle of Legality) General Limits on Taxing Power Explicit Limits on Types of Taxes Federalism Nonretroactivity Equality In General Germany France United States Treatment of Married Couples Other Countries European Tax Law Tax Law of the European Union The European Human Rights Convention Treaties, Scopeof Treaties Domestic Legal Effectof Treaties 112

4 Table of Contents vii Interpretation of Treaties In General Judicial Approaches The Vienna Convention A Common Approach to Double Tax Treaties TreatyPolicy Administrative Law Private Law Criminal Law Religion and Religious Law 129 CHAPTER 5 INTERPRETATION OF TAX LAW AND ANTI-AVOIDANCE RULES In General Conflicting Maxims Country Practice Tax Avoidance: Introduction Tax Avoidance and Evasion Sham Transactions, Simulation, and Abuse of Law General Anti-Avoidance Rules United States Introduction Economic Substance Doctrine Business Purpose Doctrine Step Transaction Doctrine and Substance Over Form United Kingdom Duke of Westminster. Tax Avoidance Approved Ramsay: TheTideTurns Evolution of the Ramsay Doctrine Other Common Law Countries France Germany Other Civil Law Countries Specific Anti-Avoidance Provisions In General United States United Kingdom Other Countries Procedural Attacks on Tax Shelters Accounting Standards 203

5 viii Comparative Tax Law CHAPTER6 TAX ADMINISTRATION AND PROCEDURE Introduction Basic Attitudes and Psychology Organization of Tax Administration Laws Return Filing Withholding and Information Reporting Advance Rulings Audits Litigation Collection Civil Penalties TaxCrimes Tax Amnesties Tax Professionals Ombudsman 229 CHAPTER 7 INCOMETAX History and Organization Concept of Income and Definitional Structure In General Concepts of Income Definitions and Concepts of Income in Practice Schedular Elements in Income Taxation TheTaxUnit RateSchedule Personal Deductions Employment Income Definition of Employee Definition of Employment Income Fringe Benefits Deduction for Employee Expenses Withholding 254

6 Table of Contents ix 7.8. Capital Income Schedular Taxation of Capital Income Taxation of Financial Instruments Owner-Occupied Housing Policy on Pensions and Savings Capital Gains Conceptof Capital Gains Taxation of Capital Gains Realization Events Forgiveness of Indebtedness Business Income In General Accounting Methods In General Deductions for Business Expenses In General Depreciation Interest Taxation of Businesses Entities Definition ofcorporate Taxpayer Rates Partnerships Corporate/Shareholder Taxation Reorganizations Trusts International Aspects of Income Tax In General Residence of Individuais Residence of Entities General Approachto Taxation of Residents Relief from Double Taxation Taxation ofnonresidents Antiavoidance Rules Inflation Adjustment Income Averaging Presumptive Methods 302 Chapter 8 VALUE ADDED TAX In General VAT Basics Similarity of VAT Laws 312

7 x Comparative Tax Law 8.4 ScopeofTax Taxable Activity Goods and Services Definition of Taxable Services Supplies by Government Agencies and Nonprofits Immovable Property International Transactions Exemptions Rate Structure Administration Special Issues Financial Services and Insurance Small Businesses Agriculture Cash vs. Accrual Method Denial of Input Credit for Nonbusiness Uses Reftinds Interjurisdictional Issues 327 CHAPTER 9 OTHER TAXES Excises Wealth Taxes Net Wealth Taxes Death Duties and Gift Tax Property Taxes Social Security Taxes Stamp and Financial Transactions Taxes Customs Duties Taxes on Mineral Extraction Miscellaneous Taxes 338 Appendix I RESEARCH TOOLS FOR COMPARATIVE TAX LAW 339 Appendix 2 GENERAL ANTI-AVOIDANCE RULES 344 Australia 344 Belgium 346

8 Table of Contents xi Canada 347 HongKong 348 Ireland 348 Malaysia 349 NewZealand 349 Singapore 351 South Africa 352 Spain 352 Appendix 3 BIBLIOGRAPHY 353 Index 359