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See detailOpinion Statement ECJ-TF 1/2023 on the ECJ Decision of 16 February 2023 in Gallaher Limited (Case C-707/20), on the Taxation of Capital Gains in Intra-Group Transfers
Kofler; Garcia Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2023), 63(8),

In this CFE Opinion Statement, submitted to the EU Institutions in June 2023, the CFE ECJ Task Force comments on the ECJ decision in Gallaher Limited (Case C-707/20), which provides further clarity on the ... [more ▼]

In this CFE Opinion Statement, submitted to the EU Institutions in June 2023, the CFE ECJ Task Force comments on the ECJ decision in Gallaher Limited (Case C-707/20), which provides further clarity on the scope of the fundamental freedoms, the correct comparator in establishing discrimination and the proportionality of discriminatory taxation of capital gains. Gallaher concerns the compatibility of the United Kingdom’s group transfer rules with EU law. Under those rules, sales of assets between resident group members are treated as tax neutral, whereas sales to non-resident group members are taxed immediately. Following Advocate General Rantos’ Opinion of 8 September 2022,[2] the ECJ found the UK group transfer rules to be in line with EU law. In essence, the Court held (i) that only the freedom of establishment, under article 49 TFEU (and not also the freedom of capital movement under article 63 TFEU) is relevant in respect of national legislation that applies only to groups of companies; (ii) that no relevant restriction of the parent company’s freedom of establishment exists where a transfer is taxed irrespective of the residence of the parent; and (iii) that the immediate taxation of a realized gain in respect of a cross-border sale within the EU is justified and proportionate, even if a comparable domestic sale is treated as tax neutral. [less ▲]

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See detailTax Arbitration and the EU Treaties
Haslehner, Werner UL

in Haslehner, Werner; Kofler, Georg; Lyons, Timothy (Eds.) et al Alternative Dispute Resolution and Tax Disputes (2023)

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See detailAlternative Dispute Resolution and Tax Disputes
Haslehner, Werner UL; Kofler, Georg; Lyons, Timothy et al

Book published by Edward Elgar (2023)

The increased complexity of international tax rules since the inception of the BEPS project created the need for alternative dispute resolution. This realisation has led both the international community ... [more ▼]

The increased complexity of international tax rules since the inception of the BEPS project created the need for alternative dispute resolution. This realisation has led both the international community and European Union institutions to expand on the possibilities for intergovernmental mechanisms to address diverging interpretation of treaty rules by tax administrations in treaty partner states. These give rise to many questions on the implementation and integration of the new rules into domestic (court) procedures, their correct interpretation, and best practices in their application by tax officials, lawyers and arbitrators. This book addresses these questions in a holistic manner, starting with a comprehensive analysis of existing tax treaty norms and their practical application in MAP and arbitration procedures (Chapters 1–4). In its second part, it offers a timely expert analysis of primary and secondary EU law rules on tax dispute resolution, detailing the specifics of Directive 2017/1852 as well as their interaction with EU general principles, fundamental rights and internal market norms (Chapters 5–6). Next, Chapters 7–9 consider the taxpayer’s position in the primarily administrative dispute resolution process, focussing on taxpayer rights, the domestic legal remedies relevant to the implementation and review of MAPs and the merits of mediation as a tool for taxpayers to resolve disputes with tax administrations. Finally, the fourth part of this book (Chapters 10–13) considers the relevance for tax disputes of mechanisms found in trade and investment law, both as a source of insight for the improvement of tax-specific procedures and as mechanisms that can be applied directly to tax disputes. [less ▲]

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See detailOpinion Statement ECJ-TF 4/2022 on the ECJ Decision of 22 September 2022 in W AG (Case C-538/20) on the Deductibility of Foreign Final Losses
Kofler, Georg; Garcia Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2023), 63(2/3), 105-110

In this CFE Opinion Statement, submitted to the EU Institutions in November 2022, the CFE ECJ Task Force comments on the ECJ decision of 22 September 2022 in W AG (Case C-538/20), on the deductibility of ... [more ▼]

In this CFE Opinion Statement, submitted to the EU Institutions in November 2022, the CFE ECJ Task Force comments on the ECJ decision of 22 September 2022 in W AG (Case C-538/20), on the deductibility of foreign final losses. The W AG decision makes it clear that comparability should be examined differently depending on whether the exemption is granted by domestic or tax treaty law. The CFE ECJ Task Force has reservations regarding this distinction. For the taxpayer, an exemption has the same economic effects regardless of whether it is adopted through domestic law or tax treaty law. Moreover, W AG departs from the Court’s reasoning and thinking in Lidl Belgium, which also concerned Germany and the same rules. Ideally, the Court should have made this explicit. Finally, it remains to be seen whether Marks and Spencer (Case C-446/03) is still “good law” or if W AG was one of the final nails in the coffin of the “final loss” doctrine. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2022 on the EFTA Court Decision of 1 June 2022 in PRA Group Europe (Case E-3/21), on the Discriminatory Interaction between the “Interest Barrier” and Group Contributions
Kofler, Georg; Garcia Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2023), 63(1), 27-34

This is an Opinion Statement prepared by the CFE ECJ Task Force on PRA Group Europe (Case E-3/21), in respect of which the EFTA Court delivered its decision on 1 June 2022. At issue in PRA Group Europe ... [more ▼]

This is an Opinion Statement prepared by the CFE ECJ Task Force on PRA Group Europe (Case E-3/21), in respect of which the EFTA Court delivered its decision on 1 June 2022. At issue in PRA Group Europe was the interaction between the Norwegian “interest barrier rule” (“interest limitation rule”), which generally limits the deductibility of interest payments to affiliated resident and non-resident entities to 30% of EBITDA, and the group contribution rules, which permit tax effective transfers between group members, but are limited to Norwegian entities. As group contributions also increase the EBITDA of the recipi- ent Norwegian entity (and decrease it at the level of the paying Norwegian entity), companies in the Norwegian tax group can achieve interest deductions under the inter- est barrier rules where profits (“tax EBITDA”) and interest expenses are distributed unevenly between the companies in the group, while a similar opportunity to escape (or lessen the impact of) the interest barrier rules is not available to cross-border groups. The EFTA Court took a combined perspective on the interaction of these rules and found them to constitute an unjustified restriction of the freedom of establishment under articles 31 and 34 of the European Economic Area Agreement (1992). The EFTA Court’s decision is particularly interesting from an EU law perspective, as the interest barrier rule of article 4 of the EU Anti-Tax Avoidance Directive (2016/1164) (ATAD) similarly foresees an option for Member States to introduce a domestically limited “interest barrier group” to permit a calculation of exceeding borrowing costs and the EBITDA at the local group level. [less ▲]

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See detailAuswirkungen der Investmentsteuerreform betreffend Vereinbarkeit mit EU-Recht, Verhinderung von Steuersparmodellen und Steuervereinfachung
Anzinger, Heribert; Haslehner, Werner UL; Tappen, Falko

Report (2023)

The InvStG 2018 addressed the various concerns raised from an EU law perspective prior to the reform. The reform of investment tax law can therefore be considered a success in this respect. Explicit ... [more ▼]

The InvStG 2018 addressed the various concerns raised from an EU law perspective prior to the reform. The reform of investment tax law can therefore be considered a success in this respect. Explicit disadvantages for cross-border situations existing prior to the reform have been almost completely eliminated with the InvStG 2018. Nevertheless, following the mission to critically examine the law from both a primary law and secondary law perspective, this report highlights points with regard to which a certain need for adjustment can be stated. These are all questions of detail, which are expected to concern only a small number of cases. There are no concerns for the large majority of regulations and cases. The tax saving models addressed by the investment tax reform, in particular the models of "Kopplungsgeschäfte", "Zins- & Dividendensurrogate", "Ertragsausgleich Enhancements" and with the Luxembourg SPF, are in principle effectively eliminated by the conceptual countermeasures in the InvStG 2018. Within the scope of the study, only selective tax avoidance options remained in the context of these models. At the same time, the new conception of investment taxation opened up new scope for tax structuring, particularly in the different partial exemption rates and the option-opening documentary requirements for the partial exemption rates, limited tax liability, real estate income and for tax-privileged investors. New tax structuring opportunities could also arise with cryptocurrencies and tokens. In order to avoid individual tax arrangements, the legislator could take up the regulatory proposals outlined in this report. For investment funds, which are particularly important in the mass case law of investment fund taxation, the InvStG 2018 has achieved its goal of legal and administrative simplification and thus a reduction of the compliance burden. These simplification effects have been relativised by the different partial exemption rates and the retroactive exemptions for tax- privileged investors. [less ▲]

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See detailLuxembourg Cases
Haslehner, Werner UL; Pantazatou, Aikaterini UL

in Georg, Kofler (et al.) (Ed.) CJEU - Recent Developments in Direct Taxation 2021 (2022)

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See detailChancen und Grenzen von Schiedsverfahren im internationalen Steuerrecht
Haslehner, Werner UL

in Schön, Wolfgang; Stark, Johanna (Eds.) Zukunftsfragen des deutschen Steuerrechts IV (2022)

This contribution considers the opportunities created for thee improvement of international tax dispute resolution by various types of arbitration mechanisms, as well as their legal and political limits ... [more ▼]

This contribution considers the opportunities created for thee improvement of international tax dispute resolution by various types of arbitration mechanisms, as well as their legal and political limits in light of superior norms, in particular constitutional law requirements, EU fundamental rights, and internal market rules. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2022 on the Decision of 27 January 2022 in European Commission v. Kingdom of Spain (Form 720) (Case C-788/19)
Kofler, Georg; García Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2022), 62(7), 304-310

In this CFE Opinion Statement, the CFE ECJ Task Force comments on the decision of 27 January 2022 in European Commission v. Kingdom of Spain (Form 720) (Case C-788/19) on the lack of proportionality of ... [more ▼]

In this CFE Opinion Statement, the CFE ECJ Task Force comments on the decision of 27 January 2022 in European Commission v. Kingdom of Spain (Form 720) (Case C-788/19) on the lack of proportionality of the consequences derived from the failure to provide information concerning assets or rights held in other Member States of the European Union or the European Economic Area. [less ▲]

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See detailIs There a Need for a Directive on Pillar Two? A Few Normative Comments.
Haslehner, Werner UL

in Intertax, International Tax Review (2022), 50(6/7), 527-530

Poland’s request to link the entry into force of the Pillar 2 Directive to an international agreement on Pillar 1 raises fundamental questions about the European constitutional structure. Beyond the mere ... [more ▼]

Poland’s request to link the entry into force of the Pillar 2 Directive to an international agreement on Pillar 1 raises fundamental questions about the European constitutional structure. Beyond the mere legality of such a link, this contribution seeks to respond to some normative concerns related to the creation of such secondary legislation. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2022 on the ECJ Decision of 25 November 2021 in État Luxembourgeois v. L (Case C-437/19) on the Conditions for Information Requests and Taxpayer Remedies
Kofler, Georg; García Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2022), 62(4), 219-223

In the judgment commented on in this article, the Court of Justice clarified the conditions for the identification of a taxpayer in group requests under the DAC (Directive 2011/16) and confirmed that ... [more ▼]

In the judgment commented on in this article, the Court of Justice clarified the conditions for the identification of a taxpayer in group requests under the DAC (Directive 2011/16) and confirmed that article 47 of the Charter on Fundamental Rights requires the information holder to be given the necessary information to assess the request’s legality. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2021 on the ECJ Decision of 19 March 2021 in MK v. Autoridade Tributária e Aduaneira (Case C-388/19) on the Option of Taxpayers to Avoid Discriminatory Taxation of Capital Gains
Kofler, Georg; Garcia Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2022)

In this case note, the CFE ECJ Task Force comments on the ECJ decision in MK v. Autoridade Tributária e Aduaneira (Case C-388/19) of 18 March 2021. The Court confirmed its previous case law and held that ... [more ▼]

In this case note, the CFE ECJ Task Force comments on the ECJ decision in MK v. Autoridade Tributária e Aduaneira (Case C-388/19) of 18 March 2021. The Court confirmed its previous case law and held that the Portuguese (optional) regime for taxation of capital gains from immovable property of non-residents was contrary to the free movement of capital under article 63 of the TFEU since non-residents were taxed less favourably than residents. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2021 on the ECJ Decision of 25 February 2021 in Société Générale (Case C-403/19) on the Calculation of the Maximum Amount of a Foreign Direct Tax Credit
Kofler, Georg; Garcia Prats, Alfredo; Haslehner, Werner UL et al

in European Taxation (2022)

The Court’s decision in Société Générale reinforces established case law that EU law neither prohibits juridical double taxation nor does it impose an obligation on the residence Member State to prevent ... [more ▼]

The Court’s decision in Société Générale reinforces established case law that EU law neither prohibits juridical double taxation nor does it impose an obligation on the residence Member State to prevent the disadvantages that could arise from the exercise of competence thus attributed by the two Member States. The parallel existence of taxing jurisdiction, however, must be distinguished from the exercise of such jurisdiction by each Member State. While Member States are free to determine the connecting factors for the allocation of taxing jurisdiction in tax treaties, in exercising the “power of taxation, so allocated by bilateral conventions for the avoidance of double taxation, the Member States must comply with EU rules and, more particularly, observe the principle of equal treatment”. It is generally accepted in the Court’s case law that both the ordinary credit and exemption (including exemption with progression) methods are permissible to avoid double taxation. In Société Générale, this position was confirmed, specifically as regards the “maximum deduction” under the ordinary credit method in tax treaties, even though this treatment can result in a disadvantage for cross-border income as compared with domestic income. As the disadvantage in Société Générale was due to the difference between gross-basis taxation of dividends in the source Member States (Italy, the Netherlands and the United Kingdom) and net-basis taxation of those foreign-sourced dividends in the residence state (France), it remains to be seen whether or not future cases will bring clarity in light of the Seabrokers decision of the EFTA Court, which examined how expenses can be lawfully allocated to foreign income from the perspective of the residence Member State. [less ▲]

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See detailCurrent Tax Treaty Issues, 50th Anniversary of the International Tax Group, G. Maisto (Editor), EC and International Tax Law Series Vol. 18, IBFD. 2020
Haslehner, Werner UL

in Intertax, International Tax Review (2022), 50(3), 4

This is a short review of an important anniversary volume of the "International Tax Group", which has made many significant contributions to international tax law over the last 50 years.

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See detailInterest and Non-Discrimination under the OECD Model Convention
Haslehner, Werner UL

in Maisto, Guglielmo (Ed.) Taxation of Interest under Domestic Law, EU Law and Tax Treaties (2022)

The taxation of interest in cross-border situations can often give rise to instances of discrimination, many of which can be remedied through a careful consideration of the non-discrimination rules ... [more ▼]

The taxation of interest in cross-border situations can often give rise to instances of discrimination, many of which can be remedied through a careful consideration of the non-discrimination rules contained in Article 24 OECD MC. This provision operates in tandem with the distributive rules of the tax treaty, but is not, in general, limited by them. A core difficulty of the application of the non-discrimination provision lies in establishing comparability of situations necessary to identify acceptable distinctions drawn in national law from those that are prohibited. This is especially challenging in the context of interest deduction limitation rules, which often do not simply attached consequences to the recipient's residence but to other criteria, which are however closely linked. This chapter proposes a test that builds on the traditional idea of simply adding the protected condition to characteristics of the disadvantaged taxpayer but refining this approach by searching for scenarios in which the "closely linked" criteria can the detached from each other to single out the basis of the discrimination. This test aims to improve on the rather rough traditional approach without the need for reference to a state's alleged discrimination aims and their "legitimacy" within the international tax system. The contribution goes on to show that both Article 24(4) and Article 24(3) OECD MC have an important role to play for cross-border interest payments to ensure equal treatment with respect to deductibility, the level of taxation and the granting of withholding tax credits. [less ▲]

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See detailLuxembourg Cases
Haslehner, Werner UL; Pantazatou, Aikaterini UL

in Kofler, Georg; et al. (Eds.) CJEU - Recent Developments in Direct Taxation 2020 (2021)

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See detailArbitration after BEPS
Haslehner, Werner UL; Kobetsky, Michael

in Kofler, Georg; Mason, Ruth; Rust, Alexander (Eds.) Thinker, Teacher, Traveler – Reimagining International Tax (Essays in Honor of H. David Rosenbloom) (2021)

Following the introduction of increasingly complex international tax rules through the OECD's Base Erosion and Profit Shifting (BEPS) Project, a stronger focus has recently been placed on mandatory ... [more ▼]

Following the introduction of increasingly complex international tax rules through the OECD's Base Erosion and Profit Shifting (BEPS) Project, a stronger focus has recently been placed on mandatory binding dispute resolution mechanisms. Despite its great appeal from the perspectives of effectiveness and economy of procedure, mandatory tax arbitration faces a number of political, practical and also legal difficulties. This chapter, which is dedicated to H. David Rosenbloom, a long-standing champion of tax arbitration, considers those challenges. [less ▲]

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See detailOpinion Statement ECJ-TF 1/2021 on the ECJ Decision of 20 January 2021 in Lexel AB (Case C-484/19) Concerning the Application of the Swedish Interest Deductibility Rules
Haslehner, Werner UL; Heydt, Volker; Garcia Prats, Alfredo et al

in European Taxation (2021), 61(6), 264-268

The case concerned the Swedish interest deductibility rules. In Sweden, interest payments are generally deductible. As an exception to this rule, interest payments made to an associated company are ... [more ▼]

The case concerned the Swedish interest deductibility rules. In Sweden, interest payments are generally deductible. As an exception to this rule, interest payments made to an associated company are generally not deductible. Interest may be deductible, however, if the underlying debt is justified on commercial grounds. Interest payments between two Swedish associated companies are always deductible due to the intra-group financial transfer system. The ECJ had to decide whether or not the difference in treatment of interest payments made to other EU companies, in comparison to interest payments made to Swedish companies, can be justified by overriding reasons in the general interest. The ECJ held that the Swedish rules were not compatible with the freedom of establishment. The decision is of particular interest as many EU Member States have introduced similar interest deductibility rules. Further, it is of interest in respect of the proposed source state rules under the OECD’s Pillar Two Blueprint. [less ▲]

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See detailValue Creation and Income Taxation: A Coherent Framework for Reform?
Haslehner, Werner UL

in Haslehner, Werner; Lamensch, Marie (Eds.) Taxation and Value Creation (2021)

Digitalization of the global economy has forced a rethink of the allocation of taxing rights along the lines of “value creation”. The current international tax system relies on a vast network of double ... [more ▼]

Digitalization of the global economy has forced a rethink of the allocation of taxing rights along the lines of “value creation”. The current international tax system relies on a vast network of double taxation conventions (DTCs) intended to allocate taxing rights between states and avoid double taxation. However, the system’s logic is rooted in the early 20th century and not fit- ting the modern global economy – particularly in so far as it presupposes a threshold physical presence in form of a “permanent establishment” (PE) to permit taxation in the state of source. Today, the traditional thresholds for giving taxing rights to “states of source” hardly reflect the reality of business activity that strongly relies on intangible assets and the provision of remote services, which are not easy to pin down at any particular place. Calls for fundamental changes crystalized in the OECD and G20 initiated BEPS Project launched in 2013 to reform the international tax system with one overall objective: To “ensure that profits are taxed where economic activities take place and value is created.” Yet despite virtual unanimity on that objective, and great number of measures already taken purportedly contributing to it, there is no clarity on its actual meaning. This contribution seeks to shed light on a potential meaning of "value creation" as it relates to (international) income taxation, employing a cross-disciplinary perspective. [less ▲]

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