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See detailOpinion Statement ECJ-TF 2/2019 on the ECJ Decisions of 26 February 2019 inN Luxembourg I et al.(Joined Cases C-115/16, C-118/16, C-119/16 and C-299/16) andT Danmark et al.(Joined Cases C-116/16 and C-117/17)
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2019), 59(10), 487502

The article acknowledges that the “Danish beneficial ownership cases” address a number of important and timely issues, especially with regard to the concept of abuse in EU law. These include (i) the ... [more ▼]

The article acknowledges that the “Danish beneficial ownership cases” address a number of important and timely issues, especially with regard to the concept of abuse in EU law. These include (i) the expansion of the general anti-abuse principle enshrined in EU law to areas of tax law that are subject to minimal harmonization, (ii) the use of the OECD materials to define the beneficial ownership concept, (iii) the conflation of the beneficial ownership concept with the general anti-abuse principle and the Court’s attempt to give the notion of “abuse” workable contours, and (iv) the reading of an effective subject-to-tax clause with regard to interest income into the definition of a “company” laid down in the IRD. The article also, however, predicts that domestic courts will struggle to translate the abstract guidance of the “Danish beneficial ownership cases” into concrete decisions, that practitioners and academics alike will have to discuss building blocks and nuances of the Grand Chamber’s decisions for some time to come, and that consideration needs to be given to the impact these cases will have on current tax structures. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2019 on the ECJ Decision of 31 May 2018 in Hornbach-Baumarkt (Case C-382/16)
Garcia Prats, Alfredo; Haslehner, Werner UL; Kofler, Georg et al

in European Taxation (2019), 59(9), 446-452

In this Opinion Statement, submitted in April 2019, the CFE discusses the ECJ decision in Hornbach-Baumarkt (Case C-382/16) concerning the application of transfer pricing rules to transactions between ... [more ▼]

In this Opinion Statement, submitted in April 2019, the CFE discusses the ECJ decision in Hornbach-Baumarkt (Case C-382/16) concerning the application of transfer pricing rules to transactions between resident and non-resident associated enterprises. [less ▲]

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See detailTax and the Digital Economy: Challenges and Proposals for Reform
Haslehner, Werner UL; Kofler, Georg; Pantazatou, Aikaterini UL et al

Book published by Wolters Kluwer (2019)

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See detailHarmful Tax Competition from the European Union towards Third Countries?
Haslehner, Werner UL; Schwarz, Paloma

in Martín Jiménez, Adolfo (Ed.) The External Tax Strategy of the EU in a Post-BEPS Environment (2019)

The European Union does not have a harmonized – let alone centralized – tax system that offers specific tax incentives. It also does not explicitly regulate tax competition of its constituent parts (the ... [more ▼]

The European Union does not have a harmonized – let alone centralized – tax system that offers specific tax incentives. It also does not explicitly regulate tax competition of its constituent parts (the EU Member States) with third countries, but only regulates “internal tax competition” among them, through the mechanism of the Code of Conduct and, even more strongly, by prohibiting State aid from being granted through tax measures. The question asked by the title of this chapter thus seems to be easily answerable in the negative: since the European Union does not make external tax policies for its Member States and does not itself provide specific tax incentives, it is not an agent of tax competition. Consequently, it would be challenging to argue that the European Union engages in harmful tax competition towards third countries. Taking a broader view, however, the notion that the European Union may engage in harmful tax competition may not be so easily dismissed, as it takes regulatory action that impacts Member States as primary agents of tax competition in a variety of ways, which can either improve or reduce the Member States’ and, by extension the European Union’s competitive position vis-à-vis third countries. Such impact takes three different routes: (i) primary EU law, affecting the design of domestic tax incentives; (ii) secondary EU law, determining certain kinds of tax incentives; and (iii) soft-law instruments, affecting domestic tax design. This contribution aims at analysing these three routes of tax competition of the European Union in order to get a deeper understanding of the ways in which the European Union may be said to engage in harmful tax competition. Before the different models can be analysed in this light, however, it is first necessary to enquire into the nature of “harmful tax competition”, a term that is all too often used without a clear definition of its content. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2018 on the ECJ Decision of 12 June 2018 in Bevola (Case C-650/16), Concerning the Utilization of “Definitive Losses” Attributable to a Foreign Permanent Establishment
Garía Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2019), 59(2/3), 113-119

This CFE Opinion Statement, submitted to the European Institutions in November 2018, discusses the ECJ’s decision in Bevola (Case C-650/16), which reaffirms that the concept of “definitive losses” first ... [more ▼]

This CFE Opinion Statement, submitted to the European Institutions in November 2018, discusses the ECJ’s decision in Bevola (Case C-650/16), which reaffirms that the concept of “definitive losses” first established in Marks & Spencer (Case C-446/03) and refined, inter alia, in Commission v. United Kingdom (Case C-172/13) is still applicable to permanent establishments and that the standard for testing comparability continues to be related to the aim pursued by the national provision at issue. Further, the CFE invites the EU to consider harmonizing measures that will introduce immediate loss utilization with a recapture mechanism. [less ▲]

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See detailTime and Tax: Constitutional Versus Economic Perspectives
Haslehner, Werner UL

in Kofler, Georg; Rust, Alexander (Eds.) Time and Tax – Issues in International, EU, and Constitutional Law (2019)

Constitutional and economic perspectives frequently differ, including with respect to taxation. Constitutional scholars, on the one hand, typically focus on questions of justice with respect to a ... [more ▼]

Constitutional and economic perspectives frequently differ, including with respect to taxation. Constitutional scholars, on the one hand, typically focus on questions of justice with respect to a particular policy, together with the legal and institutional structures that aim to implement that policy, and thus look at individual rights, equity, the balance ofpowers and the proportionate consideration of diverse interests. Economists, on the other hand, are mainly interested in a particular policy's economic efficiency: they zoom in on its trade-offs, incentives, and consequences for economic welfare as a whole. It is necessary to combine both views for a holistic understanding of legal regulations. From both perspectives, it is, ultimately, a policy's practical effects that drive an assessment of its economic efficiency or its fairness. Thus, any constitutional or legal analysis ought to be imbued with a certain level of economic analysis, as justice depends on the actual outcomes of a policy, including its second-order effects. This contribution attempts to inquire the consequences of such approach in three main dimensions of timing taxation: assessment of taxes, collection of taxes, and the transition between different tax rules and systems. [less ▲]

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See detailTime and Tax – Issues in International, EU, and Constitutional Law
Haslehner, Werner UL; Kofler, Georg; Rust, Alexander

Book published by Kluwer Law International (2019)

Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the ... [more ▼]

Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the provision of accurate legal advice, timing is particularly sensitive. This book is the first to analyse the relationship between time and three key areas of tax: treaties, EU law, and constitutional law issues, such as legal certainty and individual rights. The issues arising from the interplay of these various areas are analysed from a both academic and practical angle, providing important insights independent of the concrete national framework within which tax rules are applied. [less ▲]

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See detailEU and WTO Law Limits on Digital Business Taxation
Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Pantazatou, Aikaterini (Eds.) et al Tax and the Digital Economy: Challenges and Proposals for Reform (2019)

This chapter addresses the challenges and limits posed by two sets of supranational law for any reform of international tax systems aimed at capturing profits made in specific digital business models. By ... [more ▼]

This chapter addresses the challenges and limits posed by two sets of supranational law for any reform of international tax systems aimed at capturing profits made in specific digital business models. By way of background, it first analyses the policy challenges arising from digitalization and lists a few policy responses that have been proposed or implemented recently (§3.02). Specifically, it will focus on specific withholding taxes (WHT) tailored to ‘digital transactions’, new source rules (‘digital nexus’, ‘virtual permanent establishment’ (VPE), ‘significant digital presence’ (SDP)) and specific new taxes directly targeting ‘digital business’ (‘equalization levies’ (EL) and ‘digital services tax’ (DST)). As these ideas are all subject to more detailed review in other chapters in this volume, they are described here only to the extent necessary to perform a generic analysis of potential incompatibilities with supra- and international law. The chapter then reviews well-known limits imposed by European Union (EU) law for tax policy- making with specific reference to such proposed policy responses, distinguishing between limits imposed on EU Member States (§3.03[A]) and on the EU as an independent actor (§3.03[B]). It then follows a less well-trodden path, discussing limitations on reforms arising from World Trade Organization (WTO) law (§3.04), before offering a brief concluding summary of the insights gained from the chapter (§3.05). [less ▲]

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See detailLuxembourg: Dual Residence and Income Qualification of a Lawyer in Hong Kong
Haslehner, Werner UL

in Kemmeren, Eric; Essers, Peter; Smit, Daniel (Eds.) et al Tax Treaty Case Law Around the Globe 2018 (2019)

The contribution describes and discusses the tax treatment of a dual-resident lawyer in Luxembourg and Hong Kong, and the interpretation of the tax treaty rules applying to that circumstance. The ... [more ▼]

The contribution describes and discusses the tax treatment of a dual-resident lawyer in Luxembourg and Hong Kong, and the interpretation of the tax treaty rules applying to that circumstance. The contribution is based on a judgment rendered by Luxembourg's Cour administrative in 2018. [less ▲]

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See detailArtikel 24. Gleichbehandlung
Haslehner, Werner UL

in Tumpel, Michael; Aigner, Dietmar; Kofler, Georg (Eds.) DBA – Doppelbesteuerungsabkommen Kommentar (2019)

This contribution consists of a comprehensive commentary on the non-discrimination rule enshrined in the OECD Model Tax Convention, with a particular view on its implementation in Austrian tax treaties ... [more ▼]

This contribution consists of a comprehensive commentary on the non-discrimination rule enshrined in the OECD Model Tax Convention, with a particular view on its implementation in Austrian tax treaties and its effects in Austrian tax law. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2018 on the ECJ Decision of 7 September 2017 in Eqiom (Case C-6/16), concerning the Compatibility of the French Anti-Abuse Rule Regarding Outbound Dividends with the EU Parent-Subsidiary Directive (2011/96) and the Fundamental Freedoms
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2018)

This is an Opinion Statement prepared by the CFE ECJ Task Force on Eqiom (Case C-6/16), in respect of which the Sixth Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on ... [more ▼]

This is an Opinion Statement prepared by the CFE ECJ Task Force on Eqiom (Case C-6/16), in respect of which the Sixth Chamber of the Court of Justice of the European Union (ECJ) delivered its decision on 7 September 2017. The CFE welcomes the Eqiom decision. In an international context where the fight against tax avoidance and aggressive tax planning is intensifying, it is important to preserve the fundamental principles of a balanced tax system: Free choice of the least taxed route, legal certainty, respect for principles concerning burden of proof, etc. In this respect, the Court appears to be the guardian of these rights. In line with its previous decisions and upholding the fundamental ideas of the Internal Market, the ECJ in Eqiom and Deister and Juhler clearly confirms that Member States may neither employ general presumptions of abuse nor define any tax planning or structuring as abusive in light of secondary EU law or the fundamental freedoms. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2018 on the Compatibility of Limitation-on-Benefits Clauses with the EU Fundamental Freedoms
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2018)

This Opinion Statement was prepared by the CFE ECJ Task Force and concerns the compatibility of limitation-on-benefits (LoB) clauses with the EU fundamental freedoms, based on decisions of the European ... [more ▼]

This Opinion Statement was prepared by the CFE ECJ Task Force and concerns the compatibility of limitation-on-benefits (LoB) clauses with the EU fundamental freedoms, based on decisions of the European Court of Justice (ECJ). The context of this statement is the Commission’s infringement procedure against the Netherlands with regard to the LoB clause in the Japan- Netherlands Income Tax Treaty (2010) and the inclusion of a simplified optional LoB clause in the BEPS Multilateral Instrument. [less ▲]

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See detailGeneral Anti-Avoidance Rules in EU Law (EU Report IFA Congress 2018)
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in IFA (Ed.) Cahiers de droit fiscal international, Volume 103A (2018)

While the EU Treaties do not contain a general anti-abuse rule, the Court of Justice of the European Union (ECJ) uses the concept of abuse of law when interpreting the EU Treaties in multiple substantive ... [more ▼]

While the EU Treaties do not contain a general anti-abuse rule, the Court of Justice of the European Union (ECJ) uses the concept of abuse of law when interpreting the EU Treaties in multiple substantive areas of law, including direct taxation. Current EU mechanisms for protection against abusive practices have that case law as a common root. This Report therefore starts by evaluating the emergence of the concept of abuse in the case law of the ECJ with regard to the fundamental freedoms. In this respect, the Court has accepted that discriminatory anti-avoidance rules can be justified by overriding reasons in the general interest but only where such rule specifically relates to wholly artificial arrangements aimed at circumventing the application of the legislation of the Member State concerned. Moreover, general and special anti-abuse provisions are enshrined in secondary EU law instruments. This concerns the general anti-avoidance rule for the area of corporate taxation, which was introduced by the Anti-Tax Avoidance Directive (ATAD) and will be effective from 1 January 2019, and the more specific rules in the Parent-Subsidiary Directive (PSD), the Merger Directive (MD) and the Interest-Royalty Directive (IRD). This Report explains the scope of these provisions, their interpretation and application, and their relationship with primary EU law, tax treaties and national law. Finally, this Report provides a brief outlook on the impact of EU law on domestic tax systems in this field, stressing that general anti-abuse measures might create tensions with fundamental taxpayers’ rights, such as the right to legal certainty and the freedom to arrange one’s economic affairs. [less ▲]

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See detailTaxing where value is created in a post-BEPS (digitalized) world?
Haslehner, Werner UL

in Kluwer International Tax Blog (http://kluwertaxblog.com/) (2018)

As international tax reform aims to ensure "taxation where value is created", it is crucial to ask questions about the relationship between taxation and value creation, in particular with respect to ... [more ▼]

As international tax reform aims to ensure "taxation where value is created", it is crucial to ask questions about the relationship between taxation and value creation, in particular with respect to increased digitalisation. As the notions of value creation and substance are inextricably linked to a functional analysis of business activity, further the challenges arising from artificial intelligence taking independent decisional control over key business functions will also need to be considered. This brief note outlines some of the existing developments in the relationship between these factors. The blog is available at http://kluwertaxblog.com/2018/05/30/taxing-value-created-post-beps-digitalized-world/ [less ▲]

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See detailInvestment Fund Taxation - Domestic Law, EU Law, and Double Taxation Treaties
Haslehner, Werner UL

Book published by Kluwer Law International (2018)

The book covers the central questions arising in national law and tax policy, explores the regulatory and tax framework of the European Union (EU), and discusses the multifaceted interactions of both ... [more ▼]

The book covers the central questions arising in national law and tax policy, explores the regulatory and tax framework of the European Union (EU), and discusses the multifaceted interactions of both national and EU law with bilateral tax treaties. Through fourteen chapters following the editor's introduction, leading academic experts and practising specialists provide insights into all the most relevant aspects of funds taxation. [less ▲]

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See detailOpinion Statement ECJ-TF 4/2017 on the Decision of the Court of Justice of the European Union of 9 February 2017 in X (Case C-283/15 “Pro-Rata Personal Deductions”), Concerning Personal and Family Tax Benefits in Multi-State Situations
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2018)

The CFE welcomes the pro-rata approach to personal and family deductions developed in the X decision. In doing so, the Court contributes to the establishment of the internal market. Indeed, the pro-rata ... [more ▼]

The CFE welcomes the pro-rata approach to personal and family deductions developed in the X decision. In doing so, the Court contributes to the establishment of the internal market. Indeed, the pro-rata approach supports an open market economy with free competition, an efficient allocation of production factors, tax neutrality, a level playing field, international tax neutrality, the ability-to-pay principle, the direct benefit principle and origin-based taxation. The CFE, however, also notes that implementation of the principles established by X will pose a number of technical and policy issues for domestic legislators that have not yet been addressed by the Court. These include the calculation of the relevant proportions of income and possible mechanisms to avoid “cherry picking” by non-residents. [less ▲]

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See detailMacht die Bekanntmachung zum Beihilfebegriff Steuerbeihilfen transparenter?
Haslehner, Werner UL; Schwarz, Paloma

in Jaeger, Thomas; Haslinger, Birgit (Eds.) Jahrbuch Beihilferecht 18 (2018)

The Commission's 2016 Notice on the Notion of Aid extensively covers the issue of tax measures constituting aid. This is a welcome development as it gives vital guidance to tax practice, which had been ... [more ▼]

The Commission's 2016 Notice on the Notion of Aid extensively covers the issue of tax measures constituting aid. This is a welcome development as it gives vital guidance to tax practice, which had been subject to increasing uncertainty in recent years in the area of tax aid. Due to the one-sided binding value of the notice, protected legitimate expectations are created for taxpayers to the extent that the Notice provides clear delimiting statements. Nevertheless, many of the interpretations of the Commission in the Notice are not based on case law, but rather the Commission's own views, which requires a critical examination of the positions taken by the Commission and their backing by the Court of Justice. [less ▲]

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See detailEU-US Relations in the Field of Direct Taxes from the EU Perspective: A BEPS-induced Transformation?
Haslehner, Werner UL

in Pistone, Pasquale; Weber, Dennis (Eds.) The Implementation of Anti-BEPS Rules in the EU: A Comprehensive Study (2018)

This chapter attempts to cover a range of interrelated questions that are all inextricably linked to the EU-US relationship in direct tax matters. Its main theme is the potential influence of legal and ... [more ▼]

This chapter attempts to cover a range of interrelated questions that are all inextricably linked to the EU-US relationship in direct tax matters. Its main theme is the potential influence of legal and political developments within the EU on this external relationship. Shining a critical light on the legality of some of the recent changes made to EU legislation and enforcement in the context of the global fight against BEPS, it argues that the US government's newly assumed active role with respect to EU tax policy may inadvertently strengthen tendencies to bring direct tax matters more comprehensively into the range of power of the Commission – including at the international level – as it creates an interest on the US side to negotiate directly with the 'rela decision makers' rather than intermediaries without sovereign power over the entirety of the issues. It concludes, however, that in the current state of integration of direct taxation within the EU, such a bilateral relationship and the conclusion of an EU-US DTA is not yet legally possible. This would likely change, however, if the EU were to adopt a comprehensive corporate taxation regime along the lines of the Commission's CCTB proposal. At the same time, the Commission can no longer be kept entirely on the sidelines in Member States' DTC negotiations. [less ▲]

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See detailLuxembourg: Taxation of Flight Personnel in Triangular Situations and Article 15(3) of the OECD Model
Haslehner, Werner UL

in Lang, Michael; Rust, Alexander; Owens, Jeffrey (Eds.) et al Tax Treaty Case Law Around the Globe 2017 (2018)

The case discussed in this note concerns an issue arising before the Cour administrative on the taxation of flight personnel of a Belgian airline. The individuals resided in Belgium, France, Germany, and ... [more ▼]

The case discussed in this note concerns an issue arising before the Cour administrative on the taxation of flight personnel of a Belgian airline. The individuals resided in Belgium, France, Germany, and the Netherlands, respectively, and where employed by a company in Luxembourg. Although the substantive issue discussed in the judgment is quite straightforward, interesting procedural questions arise from the rather unusual circumstance that the case was not brought to the courts by the former managing director of the company, who had been charged for the unremitted withholding tax under a joint liability rule. One of the crucial questions the court had to address in its judgment was whether the managing director could (still) rely on the limitation of tax jurisdiction following from the tax treaty. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2017 on the Decision of the Court of Justice of the European Union of 16 May 2017 in Berlioz Investment Fund SA (Case C-682/15), Concerning the Right to Judicial Review under Article 47 of the EU Charter of Fundamental Rights in Cases of Cross-Border Mutual Assistance in Tax Matters
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2018)

The CFE welcomes this decision in that it marks a new page in the protection of taxpayer rights. In line with the principle “wherever there is a right, there is a remedy”, it shows that EU law may ... [more ▼]

The CFE welcomes this decision in that it marks a new page in the protection of taxpayer rights. In line with the principle “wherever there is a right, there is a remedy”, it shows that EU law may reconcile the interest in securing an effective protection of tax collection with that in respecting fundamental rights. The CFE wonders whether the threshold of “manifest irrelevance” can effectively secure the protection of the relevant persons’ rights. It also wonders whether this offers an effective protection against fishing expeditions or requests for information that is unlikely to be relevant to the tax affairs of a given taxpayer. [less ▲]

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