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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 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 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 detailThe Controlled Foreign Company Regime
Haslehner, Werner UL

in Weber, Dennis; Van de Streek, Jan (Eds.) The EU Common Consolidated Corporate Tax Base - Critical Analysis (2018)

The Controlled Foreign Company (CFC) regime proposed by the Commission as part of the newly launched Common Corporate Tax Base (CCTB) project reflects the perceived need to strengthen the Union’s anti-tax ... [more ▼]

The Controlled Foreign Company (CFC) regime proposed by the Commission as part of the newly launched Common Corporate Tax Base (CCTB) project reflects the perceived need to strengthen the Union’s anti-tax avoidance measures, and specifically to discourage profit shifting to low-tax jurisdictions. The proposed rule largely reflects previous work done by the OECD as part of the BEPS project and the EU implementation measures in the Anti-Tax Avoidance Directive (ATAD), but it deviates from both in a number of its details. This contribution aims to provide a first technical analysis of the provision to reveal its scope, its mechanism, and apparent shortcomings. It furthermore tries to imbed it in its context of existing primary and secondary EU law. [less ▲]

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See detailTax Treaty Disputes in Germany
Haslehner, Werner UL

in Eduardo, Baistrocchi (Ed.) A Global Analysis of Tax Treaty Disputes (2017)

Germany has been at the centre of international tax law development for more than 100 years: it is the birthplace of the first-ever double taxation convention, the home of the first and most cited ... [more ▼]

Germany has been at the centre of international tax law development for more than 100 years: it is the birthplace of the first-ever double taxation convention, the home of the first and most cited international commentary on double taxation conventions, and the source of an unsurpassed number of court decisions dealing with problems of international tax law over the course of more than a century. It is not clear, however, that the development of the German perspective on international tax law as perceived through the lens of tax treaty disputes is driven by a coherent policy or overarching objective. Rather, it would appear to emerge as the outcome of the different roles taken on by the German institutions with relevance in international tax policy, such as the legislator, tax administration, and national courts. While this contribution aims at elucidating the development of Germany’s perspective on international taxation, it is thus cautious not to attribute a unitary purpose underlying this development, but to showcase the different elements that have been important for it. [less ▲]

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See detailLuxembourg National Report: Tax Avoidance Revisited in the EU BEPS Context
Haslehner, Werner UL

in Dourado, Ana Paula (Ed.) Tax Avoidance Revisited in the EU BEPS Context (2017)

This contribution analyses the status quo of anti-tax avoidance laws and doctrines in Luxembourg in reflection of the developments from the OECD BEPS project and the EU's reaction thereto. Starting from ... [more ▼]

This contribution analyses the status quo of anti-tax avoidance laws and doctrines in Luxembourg in reflection of the developments from the OECD BEPS project and the EU's reaction thereto. Starting from the traditional approach taken by the Luxembourg courts to the term "Steuerumgehung" in §6 StAnpG, it also refers to special and target anti-avoidance rules (SAARs and TAARs) notably in the area of transfer pricing. Please note that the contribution was finalised in summer 2016 and the initial temporal scope of the study had been set until the end of 2015. Later developments, in particular changes to transfer pricing in Luxembourg (Art. 56bis LIR) could therefore not be taken into account. [less ▲]

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See detailTaxation at the Crossroads of Fundamental Rights and Fundamental Freedoms in the EU
Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Rust, Alexander (Eds.) EU Tax Law and Policy in the 21st Century (2017)

After nearly thirty years of dormancy with respect to direct taxation matters, the EU fundamental freedoms have been gradually accepted as a major determinant of the Member States’ freedom to impose to ... [more ▼]

After nearly thirty years of dormancy with respect to direct taxation matters, the EU fundamental freedoms have been gradually accepted as a major determinant of the Member States’ freedom to impose to taxes. Today, the power of the freedoms to limit the Member States’ competence in this area of law is accepted without question. At the same time, EU fundamental rights have, to date, played almost no role at all with respect to tax matters, let alone direct tax matters, although they were already recognized as constituent elements of primary EU law by the Court of Justice of the European Union (the Court or the CJEU) in the 1960s. This dichotomy is remarkable, not least because it is difficult to neatly disentangle fundamental freedoms from fundamental rights, as the former may well be seen as a subset of the latter. This contribution explores the doctrinal underpinnings of their existing similarities and differences as well as the interaction of both, in order to offer an explanation for the seemingly contradictory perception of both fundamental bases of primary EU law. In so doing, it will address the following questions: What is the relationship between fundamental rights and fundamental freedoms? To what extent do they limit or reinforce each other? Why has the CJEU not brought EU fundamental rights to bear in its jurisprudence on direct taxation thus far? Can or should the CJEU be more active in this respect? Thus, this contribution, first, briefly recounts the development of EU fundamental rights and fundamental freedoms and the doctrinal underpinnings of this development as a basis to analyse the scope of both components of primary law and their relationship to one another. Second, it analyses the similarities and relevant differences between fundamental rights and fundamental freedoms and suggests an answer to the question of the extent to which the fundamental freedoms can or should be considered to be fundamental rights. Finally, it assesses the application of fundamental rights in direct tax cases by looking at the clues the CJEU has left in the very little case law available with implications for this question. [less ▲]

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See detailEU Tax Law and Policy in the 21st Century
Haslehner, Werner UL; Kofler, Georg; Rust, Alexander

Book published by Kluwer Law International (2017)

Major changes in EU tax law demand an analysis of not just the current state of the field, but also forthcoming EU-level policy initiatives and their likely implications for taxpayers, regulators, and ... [more ▼]

Major changes in EU tax law demand an analysis of not just the current state of the field, but also forthcoming EU-level policy initiatives and their likely implications for taxpayers, regulators, and national legislatures alike. This book, the first in-depth commentary and analysis of such developments, offers exactly that. Twenty EU tax and policy experts examine the impact of EU Treaty provisions and recent ECJ case law on EU tax law, and provide well-informed assessments of current and anticipated EU tax policy initiatives and their potential impacts. [less ▲]

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See detailCross-border Exchange of Tax Information and Fundamental Rights
Chaouche, Fatima UL; Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Rust, Alexander (Eds.) EU Tax Law and Policy in the 21st Century (2017)

Very few areas of law have been subject to as much scrutiny and political pressure as tax law over the past years. In a very short period of time, we went from almost no exchange to the implementation of ... [more ▼]

Very few areas of law have been subject to as much scrutiny and political pressure as tax law over the past years. In a very short period of time, we went from almost no exchange to the implementation of automatic exchange of information for specific categories of income. Since 2009, an unprecedented interventionism has been best illustrated by the amendments and enlargements of various mutual assistance instruments, both at OECD and EU levels. This widening of scope undoubtedly involves implications for taxpayers who are directly or indirectly concerned by the exchange of information. The unremitting efforts to achieve efficient exchanges among national tax authorities has, so far, resided in the promptness with which the information gathered is transferred and thereby encouraging requested States to limit taxpayers’ notification and participation rights. Addressing fundamental rights implications in cross-border exchanges of information entails, first, an overview of the recent developments in exchange of information procedures and an overview of the scope of fundamental rights at both EU and national levels . Along the same lines, a review of the CJEU decision in Sabou appears relevant in this context as it features in concreto implications of mutual assistance mechanisms on taxpayers’ procedural rights. Considering that the request for preliminary ruling addressed to the CJEU in Sabou mainly raised concerns with respect to the application of the right of the defence, it is appropriate to identify further taxpayers’ rights that may come into play in mutual assistance proceedings. This ‘inventory’ exercise is a prerequisite for a just assessment of the current exchange of information legal framework and allows the formulation of open questions for identified unresolved issues. [less ▲]

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See detailLuxembourg: Profit Adjustments for Interest-Free Loans in Accordance with Article 9
Haslehner, Werner UL

in Kemmeren, Eric; Smit, Daniel; Essers, Peter (Eds.) et al Tax Treaty Case Law around the Globe 2016 (2017)

This case comment analyzes the interaction of Article 9 of the Italy-Luxembourg tax treaty with Luxembourg's domestic rules to adjust taxable profits in case of a interest-free loan.

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See detailLuxembourg: Applying Article 16 to a “Collège des Commissaires”
Haslehner, Werner UL

in Kemmeren, Eric; Smit, Daniel; Essers, Peter (Eds.) et al Tax Treaty Case Law around the Globe 2016 (2017)

This case note examines a decision by the Cour administrative of Luxembourg concerning the qualification of the fees earned by a commissaire of a partnership limited by shares under the Luxembourg-South ... [more ▼]

This case note examines a decision by the Cour administrative of Luxembourg concerning the qualification of the fees earned by a commissaire of a partnership limited by shares under the Luxembourg-South Africa tax treaty. It concludes that, while the result of the judgment is unobjectionable, it failed to explore the boundaries of the meaning of the term "director" in ways that could give clearer indications for other cases. [less ▲]

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See detailLuxembourg: Exchange of Information and EU Fundamental Rights (C-682/15, Berlioz Investment Fund S.A.)
Haslehner, Werner UL

in Lang, Michael; Pistone, Pasquale; Rust, Alexander (Eds.) et al CJEU – Recent Developments in Direct Taxation 2016 (2017)

The present case concerns the question of whether the right to an effective remedy — as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union — means that a Member State must ... [more ▼]

The present case concerns the question of whether the right to an effective remedy — as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union — means that a Member State must allow a company to challenge an order requesting information for the purposes of the tax assessment of another party in a court that would have unlimited authority to review the legitimacy of that order, including the “foreseeable relevance” of the original request made by another Member State. The case has the potential to provide a crucial piece in the legal puzzle that surrounds exchange of information in tax matters in the triangle of domestic law, tax treaty law and EU law, with particular emphasis on the protection of taxpayer (and related party) rights. However, due to the actual circumstances of the case, it does not appear likely that the CJEU will address all of the questions asked by Luxembourg’s Cour administrative. In particular, the meaning of “foreseeable relevance” under Directive 2011/16 may be seen as having little relevance for the outcome of the case in light of the broad meaning given to it by Luxembourg’s statute so that the CJEU may leave it unresolved even if it agrees with the domestic court on the application of Article 47 of the Charter. [less ▲]

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See detailLohnsteuervollzug im Europäischen Rechtsvergleich
Haslehner, Werner UL

in Drüen, Klaus-Dieter (Ed.) Besteuerung von Arbeitnehmern (2017)

The form and method of taxation of employees follows a distincitve pattern with many similarities across Europe. However, a number of significant differences and exceptions remain. This contribution uses ... [more ▼]

The form and method of taxation of employees follows a distincitve pattern with many similarities across Europe. However, a number of significant differences and exceptions remain. This contribution uses a functional comparative law perspective to highlight and analyse some of those differences and how they relate to the main objectives of the strucure of employee taxation: individualisation, synchronisation, complexity, and security. [less ▲]

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See detail"LuxLeaks IV": Das Belgische Excess Profit Exemption Regime als steuerliche Beihilfe
Haslehner, Werner UL; Schwarz, Paloma

in Jaeger, Thomas; Haslinger, Birgit (Eds.) Beihilferecht Jahrbuch 2017 (2017)

The case under consideration in this contribution concerns the Belgian Excess Profit Exemption Regime, ruled to be illegal state aid by the Commission in 2016. Two questions arise from the case: First ... [more ▼]

The case under consideration in this contribution concerns the Belgian Excess Profit Exemption Regime, ruled to be illegal state aid by the Commission in 2016. Two questions arise from the case: First, what relevance the arm's length principle has under EU state aid law; second, whether the existence of "double non-taxation" (or so-called "white income") has any implications for a finding of state aid. The Commission takes the position that the arm's length principle is a necessary element of any Member State's corporate tax system as a consequence of the general equality principle underlying Article 107 TFEU. On the second question, the Commission's analysis is somewhat less unambiguous, but seems to clearly assign some relevance to the existence of double non-taxation. Both positions are reviewed critically in this contribution. [less ▲]

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See detailArtikel 24. Gleichbehandlung
Haslehner, Werner UL

in Aigner, Dietmar; Kofler, Georg; Tumpel, Michael (Eds.) DBA – Doppelbesteuerungsabkommen Kommentar (2016)

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 detailNationality Non-Discrimination and Article 24 OECD - Perennial Issues, Recent Trends and New Approaches
Haslehner, Werner UL

in Pistone, Pasquale; Weber, Dennis (Eds.) Non-Discrimination in Tax Treaties: SElected Issues from a Global Perspective (2016)

Article 24 OECD Model Tax Convention consists of four separate clauses with different wording, structure and apparent purpose, each concerned with preventing a particular form of discrimination. This ... [more ▼]

Article 24 OECD Model Tax Convention consists of four separate clauses with different wording, structure and apparent purpose, each concerned with preventing a particular form of discrimination. This contribution attempts to shed some light at principles that underlie and inform the interpretation of article 24 in its entirety and to comment on the clarifications made in this respect by the OECD. It then explores the scope of application of the nationality non-discrimination provision, with a particular focus on two questions: Whether companies can rely on the nationality non-discrimination provision and how article 24(1) interacts with other non-discrimination norms, both in tax treaties and in other legal sources. [less ▲]

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See detailDouble Taxation Relief, Transfer Pricing Adjustments and State Aid Law
Haslehner, Werner UL

in Richelle, Isabelle; Schön, Wolfgang; Traversa, Edoardo (Eds.) State Aid Law and Business Taxation (2016)

This contribution explores the influence of state aid law on tax measures for the provision of relief from double taxation and the consequences of its application to transfer pricing adjustments. In ... [more ▼]

This contribution explores the influence of state aid law on tax measures for the provision of relief from double taxation and the consequences of its application to transfer pricing adjustments. In particular, it analyses the compatibility of measures that prevent merely virtual double taxation and transfer pricing adjustments that might result in “white income”. It also reviews the merits of the Commission’s claim that Member States have to apply the arm’s length standard to transfer pricing adjustments as a matter of State aid law. [less ▲]

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See detail'Avoir Fiscal' and Its Legacy in Thirty Years of Direct Tax Jurisprudence of the Court of Justice
Haslehner, Werner UL

in Intertax, International Tax Review (2016), 44(5), 374-391

On occasion of the thirty-year anniversary of the Court of Justice of the European Unions (CJEU’s) landmark judgment Commission v. France, 270/83 (‘Avoir Fiscal’), this article reviews the decision of the ... [more ▼]

On occasion of the thirty-year anniversary of the Court of Justice of the European Unions (CJEU’s) landmark judgment Commission v. France, 270/83 (‘Avoir Fiscal’), this article reviews the decision of the Court and its lasting impact on EU tax law. It finds that most of the principles developed in that case remain relevant in current doctrine. At the same time, several questions that were left open in 1986 are still unresolved today. [less ▲]

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See detailLuxembourg: Tax Credit Denied to Residents with Exclusively Foreign Income (C-300/15, Kohll and Kohll-Schlesser)
Haslehner, Werner UL

in Lang, Michael; Pistone, Pasquale; Rust, Alexander (Eds.) et al CJEU – Recent Developments in Direct Taxation 2015 (2016)

Luxembourg’s tax credit for pensioners is not grandet to pensioners receiving exclusively foreign pension income. This creates a disadvantage liable to impede the exercise of the free movement of workers ... [more ▼]

Luxembourg’s tax credit for pensioners is not grandet to pensioners receiving exclusively foreign pension income. This creates a disadvantage liable to impede the exercise of the free movement of workers to the extent that it makes it less desirable for a citizen of Luxembourg to move to another Member State to take up work if she intends to return to Luxembourg after retirement. This contribution argues that there is no justification for that disadvantage, rendering Luxembourg's law incompatible with EU law. [less ▲]

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See detailThe Effect of a Tax Treaty Tie-breaker for Dual Residents
Haslehner, Werner UL

in Lang, Michael; Owens, Jeffrey; Pistone, Pasquale (Eds.) et al Tax Treaty Case Law around the Globe 2015 (2016)

Case 33872C, which was decided by Luxembourg’s Cour administrative on 18 December 2014, concerned two questions of tax treaty law: first, whether the taxpayer in question was a resident of Luxembourg or ... [more ▼]

Case 33872C, which was decided by Luxembourg’s Cour administrative on 18 December 2014, concerned two questions of tax treaty law: first, whether the taxpayer in question was a resident of Luxembourg or Germany during the tax period concerned in accordance with the tie-breaker rule of the applicable double taxation convention (DTC); and second, what was the effect of that qualification for the application of domestic tax law provisions in Luxembourg that do not affect Germany’s taxing right as guaranteed in the DTC. Does the tie-breaker rule in Article 4(1) of the OECD Model determine how a dual-resident taxpayer is to be treated under domestic law or does it merely serve to allocate the role of residence country and source country, respectively? The court answered this question in the negative, holding that the taxpayer was a resident of Germany under the tax treaty tie-breaker rule, but that the tax treaty did not prevent Luxembourg from treating him (a non-resident under the terms of the tax treaty) as a resident to the extent that doing so did not violate Germany’s primary taxing right, which resulted in (progressive) joint taxation with his spouse in Luxembourg. The court's reasoning is sound based on general principles of the relationship between domestic law and tax treaties, but did not address more intricate arguments that arise from the concrete wording of the treaty. This contribution explores these in addition to analysing the court's decision. [less ▲]

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