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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 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 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 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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See detailOpinion Statement ECJ-TF 2/2017 on the ECJ Decision of 21 December in World Duty Free Group and Others (Joined Cases C-20/15 P and C-21/15 P), Concerning the Requirements of Selective Aid in the Sense of Article 107 of the TFEU
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2017)

The Confédération Fiscale Européenne welcomes the clarification of the notion of selectivity in the World Duty Free Group decision. It is now clear that a tax measure that derogates from the normal tax ... [more ▼]

The Confédération Fiscale Européenne welcomes the clarification of the notion of selectivity in the World Duty Free Group decision. It is now clear that a tax measure that derogates from the normal tax scheme can constitute State aid even if the tax measure appears to be general in nature and does not lead to a benefit for a specific predefined group of undertakings. Given the variety of tax rules in each Member State, however, further clarification on the determination of the reference framework, the comparability test and the scope of potential justifications will be necessary. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2017 on the Decision of the Court of Justice of the European Union in SECIL (Case C-464/14) Concerning the Free Movement of Capital in Third Countries
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2017)

The Confédération Fiscale Européenne welcomes the precise and instructive decision in SECIL. The decision clarifies the application of article 63 of the TFEU on the free movement of capital to tax ... [more ▼]

The Confédération Fiscale Européenne welcomes the precise and instructive decision in SECIL. The decision clarifies the application of article 63 of the TFEU on the free movement of capital to tax legislation that denies tax benefits to dividends originating in non-EU Member States and demonstrates that Member States may not rely on article 64(1) of the TFEU, i.e. the “grandfathering clause”, if the logic of their tax legislation changed after 31 December 1993, which change can also be brought about through the conclusion of directly applicable international agreements (for example, Euro-Mediterranean Agreements). The Confédération Fiscale Européenne appreciates the further clarification that provisions with direct effect in EU international agreements with third countries, such as the Euro-Mediterranean Agreements, can create economic rights that can be relied upon by taxpayers. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2016 on the Decision of the Court of Justice of the European Union of 13 July 2016 in Brisal and KBC Finance Ireland (Case C-18/15), on the Admissibility of Gross Withholding Tax of Interest
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2017)

The CFE welcomes the clarification made by the Court regarding the operation of withholding tax on interest paid to non-residents. It is now unambiguous that, despite authorizing the application of such a ... [more ▼]

The CFE welcomes the clarification made by the Court regarding the operation of withholding tax on interest paid to non-residents. It is now unambiguous that, despite authorizing the application of such a method (if justified and proportional), the Court considers that resident and non-resident service providers are comparable and that a deduction for expenses granted to residents should be made available to non-residents. The CFE stresses that Member States wishing to keep (or to introduce) withholding tax systems need to take into account not only the substantive tax result of allowing a deduction but also need to ensure that non-residents are not discriminated against with regard to proving the expenses. The CFE also welcomes the fact that the taxpayer is being given the option of whether or not to apply such a system because this allows it to take into account compliance costs in making this decision. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2016 on the Decision of the European Court of Justice in Joined Cases Miljoen (Case C-10/14), X (Case C-14/14) and Société Générale (Case C-17/14) on the Netherlands Dividend Withholding Tax
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2016)

The Confédération Fiscale Européenne welcomes the ECJ’s decision in the case, which strongly affirms the right of non-resident taxpayers not to be taxed at a higher overall level than resident ... [more ▼]

The Confédération Fiscale Européenne welcomes the ECJ’s decision in the case, which strongly affirms the right of non-resident taxpayers not to be taxed at a higher overall level than resident taxpayers, even where the systems of taxation differ between both types of taxpayers in other respects. This will lead to significant improvement of the situation for cross-border portfolio investors, who continue to suffer from withholding taxes imposed by several Member States. The Confédération Fiscale Européenne further welcomes the various clarifications in this respect, particularly concerning the meaning of the Truck Center decision, the definition of personal allowances within the scope of the Schumacker decision and its case law on the possible neu- tralization of disadvantages by way of bilateral tax treaties. The Confédération Fiscale Européenne notes that, despite these clarifications, uncertainty continues to persist with regard to the significance of a credit carry-forward granted by a residence state for a possible neutralization of disadvantages, which the ECJ did not directly address, and with respect to the need for reimbursement of withhold- ing taxes where (only) a partial offset in the residence state is available. The Confédération Fiscale Européenne wishes to take the opportunity to urge the Member States and the European Institutions to continue to work on improving procedures with regard to relief from withholding taxation in the source state under tax treaties and EU law. [less ▲]

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See detailOpinion Statement ECJ-TF 4/2015 on the Decision of the European Court of Justice in Groupe Steria SCA (Case C-386/14) on the French Intégration Fiscale
Haslehner, Werner UL; García Prats, Alfredo; Gutmann, Daniel et al

in European Taxation (2016)

The Confédération Fiscale Européenne welcomes the Court’s clarification that cross-border company structures may not automatically be excluded from all the benefits of group taxation regimes but that ... [more ▼]

The Confédération Fiscale Européenne welcomes the Court’s clarification that cross-border company structures may not automatically be excluded from all the benefits of group taxation regimes but that rather, in general, a case-by-case assessment has to be made. This resolves concerns arising from the X Holding case, which, it is now clear, only addresses cross-border loss relief and perhaps tax-neutral intra-group transactions. [less ▲]

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