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Combating Tax Avoidance in the EU: Harmonization and Cooperation in Direct Taxation [Kõva köide]

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About this book:
Combating Tax Avoidance in the EU is the first and only book to provide a complete detailed analysis of the Anti-Tax Avoidance Package jointly with other recent and ongoing European actions taken in direct taxation. Following each Member State’s need to rebuild a strong and stable economy after the 2007 financial crisis, the European Union (EU) has developed a robust new transparency framework with binding anti-abuse measures and stronger instruments to challenge external threats of base erosion. This book makes clear that taxation has come to the centre of the EU political debate, and that the importance given to tax harmonization and the speed at which it is taking place will put EU Tax rules at the very core of all tax systems.

What’s in this book:
With contributions from both prominent tax academics and Spanish delegates to the European meetings where the EU tax rules are debated and promulgated, the book covers such issues and topics as the following:

  • the development of the EU Strategy towards Aggressive Tax Planning;
  • the recent tax-related jurisprudence of the European Court of Justice;
  • the Anti-Tax Avoidance Directive;
  • tax treaties and non-tax treaties with tax consequences both between the Member States and between the Member States and third countries;
  • code of conduct for business taxation;
  • automatic exchange of information;
  • country-by-country reporting;
  • arbitration in tax matters;
  • external strategy for effective taxation regarding non-EU countries;
  • competition and state aid developments in direct taxation;
  • the Common Consolidated Tax Base; and
  • digital significant presence and permanent establishment.

How this will help you:
As the EU pursues its ambitious tax agenda, taxation’s contribution to EU growth and competitiveness and its part in relations with the rest of the world will come into ever-clearer focus. In addition to its insights into these trends, the book’s unparalleled practical information and analysis will be of great value to tax practitioners dealing with investment analysis, tax planning schemes and other features of the current international tax landscape. The internal and purposive view of the rules will help readers interpret and match the resulting rules and the directives’ preliminary approaches.

Editors v
Contributors vii
Foreword xxxv
Preface xxxvii
Chapter 1 BEPS, ATAP and the New Tax Dialogue: A Transatlantic Competition?
1(36)
Reuven Avi-Yonah
Gianluca Mazzoni
§1.01 Introduction: The US and BEPS
2(2)
§1.02 Past Accumulations
4(4)
§1.03 Future Accumulations
8(6)
§1.04 Base Erosion
14(4)
§1.05 BEPS Action 6: Should the US Reconsider the Rejection of the PPT?
18(10)
§1.06 Anti-hybrid Provisions
28(7)
§1.07 Conclusion: The Future of BEPS
35(2)
Part I European Construction, Competences in Tax Matters and the Development of Anti-avoidance Rules
37(62)
Chapter 2 The European Union, the State Competence in Tax Matters and Abuse of the EU Freedoms
39(22)
Gloria Marin Benitez
§2.01 The Approach to the Issues
39(3)
§2.02 ECJ Jurisprudence on the Use for Tax Reasons of EU Freedoms
42(13)
[ A] Anti-avoidance Rules Enacted Motu Proprio by Member States
42(1)
[ 1] Exit Taxes
43(1)
[ 2] CFC Rules
44(2)
[ 3] Thin Capitalization Rules
46(2)
[ B] Anti-avoidance Rules Grounded on Rules of Secondary EU Law
48(3)
[ C] Lack of Domestic Specific Anti-avoidance Rule: General EU Principle Forbids Abuse of Rights
51(1)
[ 1] Case C-255/02 Halifax
51(3)
[ 2] Case C-321/05 Kofoed
54(1)
§2.03 Status Quo on Abuse of EU Law for Tax Reasons
55(1)
§2.04 Some Remarks on the Eventual Influence of the Anti-avoidance Directive on the Status Quo
56(5)
[ A] On the Purpose of the Directive and Its Eventual Implications
56(1)
[ B] On the Source of Measures Adopted
57(1)
[ C] On the Concept of Abuse Deriving from the General Anti-abuse Rule Contained in Article 6
58(3)
Chapter 3 The Role of Negative Harmonization in the European Tax Arena: Special Reference to the Cross-Border Loss Relief Regime
61(20)
Andre's Sanchez Lopez
Paula Beneitez Regil
Diego Arribas Plaza
§3.01 Negative Harmonization of Taxation
61(4)
§3.02 The System for Cross-Border Set-Off of Losses
65(16)
[ A] The European System for Cross-Border Set-Off of Losses
65(6)
[ B] The Spanish Cross-Border Loss Relief Regime
71(1)
[ 1] The Spanish System for Cross-Border Set-Off of Losses
71(1)
[ 2] The System for Cross-Border Set-Off: Historical Development
72(1)
[ a] Up until 2012
72(1)
[ b] 2013--2016
73(2)
[ c] 2017
75(2)
[ d] Conclusions
77(1)
[ C] Final Remarks
78(3)
Chapter 4 The BEPS Project in the European Union: Working Up the ATAP Package
81(18)
Roberta Poza
§4.01 Introduction
81(6)
§4.02 Background
87(4)
§4.03 Anti-tax Avoidance Package
91(2)
§4.04 Procedure in the Council: Approval of the Measures
93(3)
§4.05 Adoption of the Last BEPS-Related Measures
96(3)
Part II Council Directive (EU) 2016/1164 of 12 July 2016 Laying Down Rules Against Tax Avoidance Practices That Directly Affect the Functioning of the Internal Market
99(146)
Chapter 5 The Scope of the Directive and the Principle of Subsidiarity
101(12)
Cristino Fayos
§5.01 Introduction
101(3)
§5.02 Subsidiarity and Proportionality of the Measure
104(2)
§5.03 Scope of Application
106(7)
[ A] `Corporate Income Tax' for the Purposes of the ATAD
106(1)
[ B] Subjective Scope of Application: `Taxpayers Subject to Corporate Income Tax'
107(1)
[ 1] General Features
107(1)
[ 2] Considerations on Tax Residence and PEs
108(1)
[ 3] Excluded Taxpayers
108(1)
[ a] Transparent Entities
108(1)
[ b] Individuals
109(4)
Chapter 6 The General Anti-abuse Rule of the Anti-tax Avoidance Directive
113(32)
Andres Baez Moreno
Juan Jose Zornoza Perez
§6.01 Introduction
113(2)
§6.02 The Fight Against Tax Abuse in the Internal Market: The Justification for the ATAD
115(5)
§6.03 From the Anti-abuse Case Law of the ECJ to a General Anti-abuse Rule
120(4)
§6.04 A Specific Analysis of the General Anti-abuse Clause of the ATAD Directive
124(10)
[ A] The Legal Hypothesis Established by the General Anti-abuse Rule Contained in the ATAD Directive
125(1)
[ 1] The Subjective Test: The Obtainment of a Tax Advantage as the Main Purpose or One of the Main Purposes of the Arrangement
126(2)
[ 2] The Objective Test: The Obtainment of a Tax Advantage Must Defeat the Object or Purpose of the Applicable Tax Law
128(3)
[ 3] The Valid Commercial Reasons Test: A Falsified Arrangement in the Sense That Valid Commercial Reasons Have Not Been Established That Reflect Economic Reality
131(1)
[ B] The Legal Consequence of the General Anti-abuse Rule Contained in the ATAD Directive
132(2)
§6.05 Epilogue: An (Unforeseen) Consequence of the ATAD's General Anti-abuse Clause
134(11)
Chapter 7 Interest Limitation Rule
145(14)
Beatrix Parejo
§7.01 Introduction
145(2)
§7.02 Existing Measures on the Limitation of Deductibility of Financial Expenses
147(1)
§7.03 Consideration of Costs of Indebtedness
148(2)
§7.04 General Rule of the Fixed Ratio: EBITDA
150(2)
§7.05 Contributors to Those That Are Applicable to the Ratio Rule
152(1)
§7.06 Exempt Minimum Threshold
152(1)
§7.07 Exception Relating to Excessive Expenditure Derived from Certain Loans with Conditions
153(2)
§7.08 Group Ratio
155(1)
§7.09 Treatment of Non-deductible Financial Expenses
156(1)
§7.10 Special Sectors
157(1)
§7.11 Conclusions
157(2)
Chapter 8 Harmonization of Controlled Foreign Corporation Rules in the European Union: The Spanish Perspective
159(14)
Jose Manuel Almudi Cid
§8.01 Introduction
159(1)
§8.02 Controlled Foreign Corporation
160(3)
[ A] Definition and Object of Control
160(2)
[ B] Taxation of the Controlled Foreign Company
162(1)
§8.03 Tainted Income
163(6)
[ A] Tainted Income According to Its Legal Nature
163(4)
[ B] Tainted Income According to the Capacity and the Means of the Foreign Entity
167(2)
§8.04 Limits to the Inclusion of the Tainted Income in the Taxable Base of the Shareholder
169(1)
§8.05 Temporal Issues
170(1)
§8.06 Rules to Eliminate Double Taxation
171(2)
Chapter 9 Hybrid Mismatch Arrangements
173(18)
Silvia Lopez Ribas
§9.01 Introduction: From ATAD 1 to ATAD 2
173(1)
§9.02 Concept, Characteristics and Typology of Hybrid Mechanisms
174(2)
§9.03 General Principles of Hybrid Anti-asymmetries Rules
176(1)
§9.04 Hybrid Financial Instrument Mismatch
177(1)
§9.05 Hybrid Entity Mismatch
178(4)
[ A] Hybrid Payer Entity
179(1)
[ B] Reverse Hybrid Entity
180(2)
§9.06 Hybrid PE Mismatches
182(2)
[ A] Disregarded PE
182(1)
[ B] Double Deduction
183(1)
[ C] Deduction Without Inclusion
183(1)
§9.07 Hybrid Transfers
184(1)
§9.08 Imported Mismatches
185(2)
§9.09 Tax Residency Mismatches
187(2)
§9.10 Reverse Hybrid Mismatches
189(1)
§9.11 Transposition of ATAD 2
189(2)
Chapter 10 Exit Taxes: One Size Should Not Fit All
191(36)
Pablo A. Hernandez Gonzalez-Barreda
§10.01 Introduction
191(3)
§10.02 Concept and Types of Exit Taxes
194(6)
[ A] The Concept of Exit Tax
194(3)
[ B] Types of Exit Taxes
197(3)
§10.03 The Court of Justice of the European Union Case Law on Exit Taxes
200(17)
[ A] The Impact of Transfer of Seat Jurisprudence on Exit Taxes
201(5)
[ B] Proper Exit Taxes and the Court of Justice's (Negative) Legislative Role
206(1)
[ 1] Restriction
207(2)
[ 2] Rule of Reason: Justification of Exit Taxes and the Balanced Allocation of Taxing Powers
209(3)
[ 3] Proportionality. Deferral, Guarantee and Interests
212(5)
§10.04 Exit Tax and the Anti-tax Avoidance Directive
217(8)
[ A] Scope of Application: Transactions Included and Excluded from the Directive Exit Tax
217(1)
[ 1] Scope of Application
217(1)
[ 2] Transactions Covered by the Exit Tax
218(1)
[ B] Deferral in Instalments, Guarantees and Interests
219(3)
[ C] Valuation and Step-Up
222(2)
[ D] Minimum Standard
224(1)
§10.05 Final Comments
225(2)
Chapter 11 The Switch-Over Clause in the 2016 Proposal for an Anti-tax Avoidance Directive
227(18)
Felix Daniel Martinez Laguna
Felix Alberto Vega Borrego
§11.01 Introduction
227(2)
§11.02 Switch-Over Clauses, Subject-to-Tax Clauses and Exclusion Clauses
229(7)
[ A] Preliminary Remarks
229(1)
[ B] Switch-Over and Subject-to-Tax Clauses
230(3)
[ C] Exclusion Clauses
233(3)
[ D] Some Preliminary Conclusions
236(1)
§11.03 The Switch-Over Clause in the ATAD Proposal
236(4)
§11.04 Other Issues Regarding the Switch-Over Clause
240(3)
§11.05 Final Remarks
243(2)
Part III Administrative Cooperation in Tax Matters: A Need for a Full Applicability of European Freedoms and a Guarantee to Tax Effectiveness
245(146)
Chapter 12 Administrative Cooperation in the Recovery of Claims: Directive 2010/24/EU -- A Spanish Approach
247(32)
Jose Maria Cobos Gomez
§12.01 Introduction
247(2)
§12.02 Scope of the Directive
249(3)
[ A] Subject Matter
249(1)
[ B] To Whom the Directive Applies
250(1)
[ 1] Active Subjects
250(2)
[ 2] Passive Subjects
252(1)
§12.03 Mutual Assistance Arrangements for the Recovery of Claims
252(27)
[ A] Common Issues
253(1)
[ 1] Standard Forms and Means of Communication
253(1)
[ 2] Use of Languages
254(1)
[ 3] Disclosure of Information
255(2)
[ 4] Refusal to Handle a Request
257(1)
[ B] Assistance for Obtaining Information
257(1)
[ 1] Exchange of Information with Prior Request
257(2)
[ 2] Spontaneous Exchange of Information or Exchange of Information Without Prior Request
259(1)
[ 3] Presence and Participation in Acts of Assistance
259(2)
[ C] Assistance for the Notification of Documents
261(1)
[ 1] Requests for Notification of Documents Made by the Spanish Authorities
262(1)
[ 2] Requests for Notification of Documents Received by the Spanish Tax Authorities
263(1)
[ D] Assistance for the Recovery of Claims or the Adoption of Precautionary Measures
263(1)
[ 1] Commencement of the Procedure
263(3)
[ 2] Handling of the Procedure
266(2)
[ 3] Disputes During the Recovery Procedure
268(4)
[ 4] Termination of the Procedure
272(1)
[ 5] Request for Precautionary Measures
273(1)
[ 6] Limits to the Requested Authority's Obligations
274(1)
[ 7] Limitation Periods
275(1)
[ 8] Costs
276(3)
Chapter 13 Change of Paradigm in Administrative Cooperation Directives: Automatic Exchange of Information
279(22)
Antoinette Musilek
§13.01 First Automatic Exchange of Financial Account Information: 30 September 2017
279(2)
§13.02 Key Elements of Automatic Exchange of Financial Account Information
281(10)
[ A] Legal Basis of AEOI
281(2)
[ B] Evolution Towards CRS
283(5)
[ C] Content of the CRS
288(1)
[ 1] Account Holders of Reportable Accounts
288(1)
[ 2] Financial Accounts and Financial Information to Be Reported
289(1)
[ 3] Financial Institutions and Due Diligence Procedure
289(2)
§13.03 Implementation of CRS Automatic Exchange of Financial Account Information
291(7)
[ A] Political Commitment to the New CRS AEOI Standard
292(1)
[ B] International and Domestic Legal Framework
293(1)
[ C] Confidentiality and Data Protection
294(1)
[ D] Identifying Interested Appropriate Partners
295(1)
[ E] Compliance with IT Requirements
295(2)
[ F] Global Forum Mandate: CRS Effective Implementation Monitoring and Technical Assistance
297(1)
[ 1] AEOI CRS Effective Implementation Monitoring
297(1)
[ 2] Technical Assistance: Developing Countries
297(1)
§13.04 Forthcoming Challenges
298(3)
Chapter 14 Amendment of Directive 2011/16/EU as Regards Mandatory Automatic Exchange of Information on Tax Rulings
301(14)
Ascension Maldonado Garcia-Verdugo
§14.01 Introduction
301(1)
§14.02 Background
302(2)
[ A] Model Instruction for the Spontaneous Exchange of Information on Tax Rulings (Code of Conduct on Business Taxation)
302(1)
[ B] Action 5 of the BEPS Project: Spontaneous EOI on Tax Rulings
303(1)
§14.03 Scope of the Directive
304(2)
[ A] Obligation to Exchange Information on Bilateral/Multilateral APAs
305(1)
[ B] Obligation to Exchange Information on Audit Settlements
306(1)
§14.04 Type of Information Exchange
306(1)
§14.05 Information Exchanged with Other Member States and the European Commission
307(2)
§14.06 Limits on Exchange
309(1)
§14.07 Periodicity of Exchange
310(1)
§14.08 Directory Where the Information Is Stored
310(1)
§14.09 Exchange Tracking
310(1)
§14.10 Transposition of the Directive into Spanish Domestic Law
311(1)
§14.11 Conclusions
312(3)
[ A] Main Challenges for Tax Administrations
312(1)
[ B] Main Challenges for Taxpayers
312(3)
Chapter 15 Country by Country Reporting
315(10)
Maria del Mar Barreno Asensio
§15.01 Introduction
315(1)
§15.02 European Union Country by Country Reporting
316(5)
[ A] Information Covered by the EU CBCR
316(1)
[ B] Persons Covered
317(1)
[ C] Implementation
318(1)
[ D] Automatic Exchange
319(1)
[ E] Directive Transposition into the Spanish Law
320(1)
§15.03 Public Country by Country Reporting
321(2)
§15.04 Conclusion
323(2)
Chapter 16 Mandatory Disclosure Rules for Tax Planning Schemes and Automatic Exchange
325(14)
Jorge A. Ferreras Gutierrez
§16.01 Introduction
325(1)
§16.02 Action 12 of the BEPS Action Plan
326(3)
[ A] Who Is Obliged to Supply the Information
326(1)
[ B] Information to Be Supplied
327(1)
[ 1] Multi-step System
327(1)
[ 2] Single-Step System
327(1)
[ C] Timing for Providing the Information
328(1)
§16.03 Commission Proposal to Modify Directive 2011/16/EU in Relation to Mandatory Rules for the Exchange of Information in Tax Matters
329(1)
§16.04 Directive DAC 6
330(7)
[ A] Preliminary Recitals
330(1)
[ B] Personal Scope
331(1)
[ C] Concept of Intermediary
332(1)
[ D] Objective Scope
333(1)
[ E] Hallmarks
333(2)
[ F] Content of the Information Exchanged
335(1)
[ G] Timing for the Application
336(1)
[ H] Final Issues
336(1)
[ 1] Sanctions
336(1)
[ 2] Principle of Non-incrimination
337(1)
[ 3] Principle of Negative Silence
337(1)
§16.05 Conclusion
337(2)
Chapter 17 The New Tax Dispute Resolution Mechanisms in the European Union: The `Arbitration Directive'
339(14)
Jaime Mas Hernandez
§17.01 Background
339(3)
§17.02 Elements of the New Procedural Framework
342(8)
§17.03 Conclusion
350(3)
Chapter 18 Code of Conduct on Withholding Tax and the OECD TRACE System
353(16)
Javier Doldan Varela
Placido Martos Belmonte
§18.01 Code of Conduct on Withholding Tax
353(7)
[ A] Context
353(2)
[ B] Origin and Description of the Code of Conduct
355(5)
[ C] Further Actions
360(1)
§18.02 OECD TRACE System
360(7)
[ A] How the TRACE AI System Works
362(1)
[ B] Benefits of TRACE
363(1)
[ 1] Benefits for Governments
363(1)
[ a] Source Country
364(1)
[ b] Residence Country
365(1)
[ 2] Benefits for Investors
365(1)
[ 3] Benefits for Intermediaries
365(1)
[ C] Why Now Is a Good Moment to Implement TRACE?
365(2)
§18.03 Summing Up
367(2)
Chapter 19 Elimination of Double Taxation in the European Union: Former Article 293 TEEC, EU Competences and Controversial Aspects of the Arbitration Directive
369(22)
Aitor Navarro Ibarrola
§19.01 Introduction
369(1)
§19.02 Elimination of Double Taxation in the European Union
370(7)
[ A] Double Taxation and Alternative Dispute Resolution: The Origins of the Arbitration Directive
370(5)
[ B] MAP and Arbitration: Pros and Cons
375(2)
§19.03 Controversial Aspects of the Arbitration Directive
377(14)
[ A] Determining the Scope of the Directive
377(6)
[ B] Interaction Between the Involved Tax Authorities and the Taxpayer
383(3)
[ C] Interaction of the Procedures Envisaged in the Directive with Domestic Legal Procedures and Other Means of Alternative Dispute Resolution
386(4)
[ D] How to Resolve Double Taxation: Enforcement of the Decision
390(1)
Part IV Tax Treaties and the External Dimension of the European Union in Tax Matters
391(56)
Chapter 20 The Recommendation on Tax Treaties and the Legal Framework of Tax Treaties Between Member States and with Third States Within EU Law
393(14)
Brian Leonard
§20.01 The Role of Supranational Organizations in the Tax Affairs of the Member States: The OECD and the European Union
393(2)
§20.02 The Relationship Between Conventions to Avoid Double Taxation and European Law
395(7)
[ A] Primacy of Community Law
396(2)
[ B] Double Taxation and Community Law
398(1)
[ C] Freedom of Movement
399(1)
[ D] Freedom of Establishment
400(1)
[ E] Anti-abuse Provisions
401(1)
[ F] The ECJ's Jurisdiction over DTCs
401(1)
§20.03 Future of Taxation in the European Union
402(5)
Chapter 21 The 2016 Communication on the Strategy on External Action and the External Dimension of the EU in Tax Matters: Balancing Internal Market and Tax Sovereignty
407(22)
Edoardo Traversa
Alejandro Zubimendi
§21.01 Introduction: External Action in the EU in Tax Matters and the New Paradigm in International Tax Relations
407(1)
§21.02 Legal Foundations for External Action
408(3)
§21.03 Tax Base Erosion and International Tax Competition with Respect to Third Countries
411(12)
[ A] Tax Base Erosion: Taxation Where `Value Is Generated' as a New Paradigm to Achieve a Global Level-Playing Field
411(3)
[ B] International Tax Avoidance Within the EU and Its Implications with Respect to Third Countries
414(3)
[ C] Tax Competition by Third Countries
417(1)
[ 1] Tax Good Governance Criteria Update
418(1)
[ 2] European List of Non-cooperative Countries and Sanctions
419(2)
[ D] Conclusion
421(2)
§21.04 Limits to EU External Action Against Tax Avoidance: Community Freedoms
423(4)
§21.05 Conclusion
427(2)
Chapter 22 The EU List of Non-cooperative Jurisdictions for Tax Purposes Manuel Santaella Vallejo
429(18)
§22.01 Introduction
429(1)
§22.02 Background
430(3)
[ A] An EU Common Approach Regarding Non-cooperative Tax Jurisdictions: The Platform for Tax Good Governance
430(1)
[ B] The Pan-European List of Non-cooperative Jurisdictions of Third Countries Compiled by the European Commission from Member States' National Lists
431(2)
§22.03 The EU List of Non-cooperative Jurisdictions for Tax Purposes
433(10)
[ A] Criteria for the Preparation of the EU List of Non-cooperative Jurisdictions
434(2)
[ B] Process of Screening of Jurisdictions with a View to Establishing an EU List of Non-cooperative Jurisdictions for Tax Purposes
436(3)
[ C] The EU List of Non-cooperative Jurisdictions for Tax Purposes
439(4)
§22.04 Other Relevant Issues Associated with the EU List
443(4)
[ A] Defensive Measures
443(1)
[ B] Differences with the List of the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes: Criterion 2.2. -- Facilitation of Offshore Structures
444(2)
[ C] Future Considerations
446(1)
Part V Other European Measures to Prevent Tax Avoidance: State Aid and the Code of Conduct for Business Taxation
447(72)
Chapter 23 The Revision of the Code of Conduct for Business Taxation
449(18)
Domingo Jesus Jiminez-Valladolid de L'Hotellerie-Fallois
§23.01 Introduction
449(1)
§23.02 The Code in the Pre-BEPS Period (1998--2012)
450(9)
[ A] Objectives and Measures Affected by the Code
451(2)
[ B] Political Commitments Arising from the Code
453(1)
[ C] Effects of the Code in Relation to Harmful Tax Competition in the Pre-BEPS Period: An Examination of Unilateral Measures
454(3)
[ D] Other Results of the Code: Horizontal Measures and Relations with Third States
457(2)
§23.03 The Role of the Code in the Anti-tax Avoidance Action Plan in the EU
459(5)
[ A] The EU Anti-tax Avoidance Package and the BEPS Project
459(1)
[ B] Revision of the Code: New Tools for Combating Harmful Tax Competition
460(3)
[ C] Work Areas and Recent Results of the Code in the Post-BEPS Framework
463(1)
§23.04 Conclusions
464(3)
Chapter 24 Application of the State Aid Regime to Tax Rulings
467(16)
Juan Salvador Pastoriza Vazquez
§24.01 Introduction
467(2)
§24.02 Preliminary Notes on the Concept of State Aid
469(2)
§24.03 The Concept of Selectivity in Tax Aid
471(3)
§24.04 Selectivity in Relation to the Tax Rulings
474(5)
[ A] The Example of the Decision in Apple
477(2)
§24.05 Implementation of BEPS in the EU
479(3)
§24.06 Conclusions
482(1)
Chapter 25 The Commission's State Aid Decisions on Advance Tax Rulings: Criticisms and Potential Impact on the Future of Direct Taxation Within the European Union
483(14)
Giulio Allevato
§25.01 Harmful Tax Competition: National and Supranational Reactions
483(3)
§25.02 The Commission's Recent State Aid Decisions
486(3)
§25.03 Requirements for State Aid Assessment
489(1)
§25.04 Main Criticisms Against the Commission's Decisions
490(4)
[ A] The Arm's Length Principle as a Counterfactual
490(3)
[ B] The Conflation of the Advantage and the Selectivity Requirements
493(1)
§25.05 Final Remarks
494(3)
Chapter 26 The Difficult Relationship Between the Fundamental Freedoms and the Nexus Approach as a Criterion for Applying Preferential Regimes Within the European Union: Special Reference to IP Boxes
497(22)
Maria Cruz Barreiro Carril
§26.01 Introduction
497(1)
§26.02 Problems Arising from Patent Box Regimes as Regards the Functioning of the Internal Market
498(3)
§26.03 Solutions Adopted Within the EU for the Problems Arising from Preferential Regimes: A Similar Path to That Taken by the OECD
501(4)
[ A] First Steps
501(2)
[ B] The Reactivation of the Fight Against Harmful Tax Competition Created by Preferential Regimes: The Nexus Approach
503(2)
§26.04 Adoption of a Nexus Approach Based on Entity Instead of Jurisdiction in the Search for a Balance Between Fundamental Freedoms and the Need to Prevent BEPS in the Context of IP Boxes: Difficulties in Reconciling the Nexus Approach with the European Legal Order
505(10)
[ A] The Nexus Approach Based on the Entity
505(4)
[ B] Compatibility Problems with EU Law in the Nexus Approach Based on the Entity
509(6)
§26.05 The CCCTB as an Alternative to Patent Box Regimes: A Better Solution for Aggressive Tax Planning Behaviours Through IP Boxes Within the EU
515(2)
§26.06 Concluding Remarks
517(2)
Part VI The Future of European Taxation
519(82)
Chapter 27 Case Law of the Court of Justice of the European Union: A Reflection for the Future
521(20)
Elena Rodriguez Ruiz de Alda
§27.01 Introduction
521(1)
§27.02 The Court of Justice
522(5)
[ A] Composition
522(1)
[ B] Types of Proceedings
523(1)
[ 1] Preliminary Rulings
523(2)
[ 2] Actions for Failure to Fulfil Obligations
525(2)
§27.03 Overall Review of Judgments
527(1)
§27.04 Fundamental Freedoms
528(3)
[ A] Free Movement of Persons (Articles 18 and 21 TFEU)
528(1)
[ B] Freedom of Movement for Workers (Articles 45--48 TFEU)
529(1)
[ C] Right of Establishment (Articles 49--55 TFEU)
529(1)
[ D] Freedom to Provide Services (Articles 56--62 TFEU)
530(1)
[ E] Free Movement of Capital (Articles 63--66 TFEU)
530(1)
§27.05 Overriding Reasons of Public Interest
531(3)
[ A] To Ensure a Balanced Allocation of the Power to Tax Between the Member States
531(1)
[ B] Preventing Tax Evasion and Avoidance
532(1)
[ C] Coherence of the National Tax System
532(1)
[ D] The Need to Guarantee the Effectiveness of Fiscal Supervision
533(1)
[ E] The Need to Ensure the Effective Collection of Taxes
533(1)
§27.06 Significant Preliminary Rules
534(5)
[ A] Anti-abuse Rules in Directives
534(1)
[ 1] Judgment of 8 March 2017, Euro Park Service, Case C-14/16
534(1)
[ 2] Judgment of 7 September 2017, Eqiom SAS and Enka SA, Case C-6/16
535(1)
[ 3] Judgment of 26 October 2017, Argenta Spaarbank NV, Case C-39/16
536(1)
[ B] Administrative Cooperation
537(1)
[ 1] Judgment of 16 May 2017, Berlioz Investment Fund SA, Case C-682/15
537(1)
[ C] Exit Tax
538(1)
[ 1] Judgment of 14 September 2017, Trustees of the P Panayi Accumulation, Case C-646/15
538(1)
§27.07 Conclusion
539(2)
Chapter 28 Study of the Proposal for a Council Directive on a Common Corporate Tax Base
541(18)
Eduardo Tapia Tejedor
§28.01 Introduction
541(1)
§28.02 Subject Matter, Scope and Definitions
542(1)
[ A] Subject Matter
542(1)
[ B] Scope
542(1)
[ C] Definitions
543(1)
§28.03 Calculation of the Tax Base
543(4)
[ A] General Principles
543(1)
[ B] Calculation of the Tax Base
543(3)
[ C] Interest Limitation Rule
546(1)
§28.04 Timing and Quantification
547(2)
[ A] Temporary Allocation Rules
547(1)
[ B] Valuation Rules
548(1)
§28.05 Depreciation of Fixed Assets
549(1)
§28.06 Losses
550(1)
§28.07 Rules on Entering and Leaving the System of the Tax Base
551(1)
§28.08 Relations Between the Taxpayer and Other Entities
551(1)
§28.09 Operations Between Associated Companies
552(1)
§28.10 Anti-abuse Rules
552(3)
[ A] General Clause
553(1)
[ B] CFCs
553(1)
[ C] Hybrid Mismatches
554(1)
§28.11 Transparent Entities
555(1)
§28.12 Administration and Procedures
555(1)
§28.13 Final Provisions
555(1)
§28.14 Prospects for the Future and Some Conclusions
556(3)
Chapter 29 A Preliminary Assessment of the EU Proposal on Significant Digital Presence: A Brave Attempt That Requires and Deserves Further Analysis
559(42)
Eva Escribano
§29.01 Introduction
559(3)
§29.02 Policy Goals Pursued by the Proposal
562(7)
[ A] The Alignment Between Taxation and Value Creation
564(1)
[ B] The Contribution of Users to Value Creation
565(2)
[ C] The Challenge to Build a Proposal Based on These Parameters
567(2)
§29.03 The Proposed Significant Digital Presence Threshold
569(29)
[ A] The Taxpayer
570(1)
[ B] Supply of Digital Services
571(1)
[ 1] Concept of Digital Services and Requirements
571(3)
[ 2] Digital Services That Are Deemed to Be Covered by the Clause
574(6)
[ 3] Consistency with the Alleged Policy Goals
580(3)
[ C] Quantitative Thresholds
583(1)
[ 1] Revenue
584(6)
[ 2] Number of Users
590(1)
[ 3] Number of Business Contracts
591(1)
[ 4] Consistency with the Alleged Policy Goals
592(2)
[ D] Attribution of Profits to the Significant Digital Presence
594(4)
§29.04 Conclusions
598(3)
Index 601