References of "Haslehner, Werner 50001948"
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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 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 2? A Few Normative Comments
Haslehner, Werner UL

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

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 detailGeneral Report on Value Creation and Taxation: Outlining the Debate
Haslehner, Werner UL; Lamensch, Marie

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

There can be no doubt that “taxing income where value is created” has proved to be a powerful rallying cry to instigate a global tax reform effort. A deeper study of the alleged principle’s roots, meaning ... [more ▼]

There can be no doubt that “taxing income where value is created” has proved to be a powerful rallying cry to instigate a global tax reform effort. A deeper study of the alleged principle’s roots, meaning and compatibility with existing national and international tax rules shows, however, that a catchy slogan does not easily translate into concrete action. Instead, a lack of clarity on the intended meaning has opened a Pandora’s box full of half- baked ideas on how to “improve” on the international tax system. So far, despite many thousands of pages of new guidelines, tax policy proposals, discussion papers, academic analyses and a host of legislative amendments prepared in an uncoordinated fashion, the vision of a significantly “better” tax system cannot be said to be any closer to becoming a reality. This study analyses the theoretical foundations for an idea that almost certainly has not been conceived of in consequence of a deep reflection on such basis. It shows that the concept – despite being less than solidly grounded on a sound theoretical base – should not be dismissed as meaningless. The “true meaning” of value creation will itself be created in the process of its use, if it continues to be invoked by policymakers as real changes find their way into more and more national tax systems and international law norms. Rather than an exogenous transformative principle in its own right, it is an idea that itself is liable to being transformed; as its success as a tool for reaching consensus among more than 100 countries depends on it remaining persuasive, it cannot be shaped into just any form and survive. [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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See detailTaxation and Value Creation
Haslehner, Werner UL; Lamensch, Marie

Book published by IBFD (2021)

The suggestion to “align international taxation with value creation” first emerged in the context of the OECD BEPS Project aimed at tackling aggressive tax planning strategies resulting in base erosion ... [more ▼]

The suggestion to “align international taxation with value creation” first emerged in the context of the OECD BEPS Project aimed at tackling aggressive tax planning strategies resulting in base erosion and profit shifting. The concept of “value creation” was then further relied on in the broader discussion that followed about the impact of digitalization on the global economy generally and the fair allocation of taxes between countries in this new environment. Although the idea – or the guiding principle – that profits should be taxed where economic activities occur and where value is expected to be created initially received a relatively large support, it rapidly became clear (at least to academics) that there would be no obvious answer to the question “where is value being created?” in a manner that would be relevant for (international) tax purposes, inter alia in view of the different models of value creation within corporate entities. Based on 9 thematic reports (offering an interdisciplinary discussion of the concept of value creation mostly from an international perspective) and on 23 national reports (focusing on the meaning of value creation in domestic tax law), this book seeks to contribute to the discussion on whether the concept of value creation is viable, both theoretically and in practice, as a criterion for the allocation of taxing rights under a modernized international tax framework. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2020 on the General Court Decisions of 15 July 2020 in Ireland v. Commission and Apple v. Commission (Joined Cases T-778/16 and T-892/16) on State Aid Granted under Tax Rulings Fixing the Attribution of Profits to Permanent Establishments in Ireland
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2021), 61(2/3), 109-116

This CFE Opinion Statement, submitted to the EU Institutions on 2 December 2020, addresses the General Court decisions in Ireland v. Commission and Apple v. Commission (Joined Cases T-778/16 and T-892/16 ... [more ▼]

This CFE Opinion Statement, submitted to the EU Institutions on 2 December 2020, addresses the General Court decisions in Ireland v. Commission and Apple v. Commission (Joined Cases T-778/16 and T-892/16) on 15 July 2020. [less ▲]

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See detailOpinion Statement ECJ-TF 2/2020 on the ECJ Decision of 3 March 2020 in Vodafone Magyarország Mobil Távközlési Zrt. (Case C-75/18) on Progressive Turnover Taxes
García Prats, Alfredo; Haslehner, Werner UL; Heydt, Volker et al

in European Taxation (2020), 60(12), 555-564

This CFE Opinion Statement discusses the decision of the Grand Chamber of the ECJ in Vodafone. The Court held that the imposition of the Hungarian progressive turnover-based tax on the telecommunications ... [more ▼]

This CFE Opinion Statement discusses the decision of the Grand Chamber of the ECJ in Vodafone. The Court held that the imposition of the Hungarian progressive turnover-based tax on the telecommunications sector did not infringe the EU fundamental freedoms or article 401 of the VAT Directive (2006/112), and that the question regarding the prohibition of State aid was inadmissible. Vodafone is especially important in respect of the current debate regarding turnover-based digital services taxes. [less ▲]

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See detailCase Comment on CJEU C-405/18 AURES Holdings
Haslehner, Werner UL

in Highlights and Insights on European Taxation (2020)

This is a brief case comment on a judgment by the Court of Justice. The taxpayer in this case sought a deduction for losses incurred in the Netherlands prior to its change of residence to the Czech ... [more ▼]

This is a brief case comment on a judgment by the Court of Justice. The taxpayer in this case sought a deduction for losses incurred in the Netherlands prior to its change of residence to the Czech Republic, relying on the freedom of establishment to claim that denying the loss deduction would restrict it right to move without facing discrimination. Following its Advocate General, the Court dismissed this argument, holding that the situation of a company that had incurred losses at a time when it was outside of the tax jurisdiction of a Member State was not comparable to the situation of a company that incurred losses while being subject to that Member State's jurisdiction. The decision does not hold particular surprises, but is an important piece in search for a unified theory of two separate lines of jurisprudence: that concerning foreign loss relief and that concerning exit taxation. [less ▲]

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See detailLuxembourg: Conflict of Qualification and partnership income: autonomous and common interpretation
Haslehner, Werner UL

in Lang, Michael; Rust, Alexander; Owens, Jeffrey (Eds.) et al Tax Treaty Case Law Around the Globe 2019 (2020)

The dispute giving rise to the judgment discussed in this chapter concerns treaty interpretation in the presence of deviating national definitions of business income and thus touches upon a number of long ... [more ▼]

The dispute giving rise to the judgment discussed in this chapter concerns treaty interpretation in the presence of deviating national definitions of business income and thus touches upon a number of long-standing questions surrounding the meaning of article 3(2) of the OECD Model, the importance of common interpretation, and the resolution of qualification conflicts. The issue concerned arose from a different qualification, under domestic law, of the income earned by limited partnerships engaged in private asset management activity: while the income in question was treated as interest and capital gains from a German perspective, Luxembourg’s domestic law applied a legal fiction which resulted in it being treated as business income. In the case, Luxembourg’s highest administrative court (Cour administrative, hereinafter the “Court”) took advantage of Luxembourg and German case law, scholarship and the common legislative heritage of both countries in order to resolve the different income classification under each country’s domestic law. The court did not, however, make use of the Commentary on the OECD Model in this instance. [less ▲]

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See detailReconstructing the Treaty Network – the EU law perspective (EU report IFA Congress 2020)
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in Duff, David; Gutmann, Daniel (Eds.) Cahiers de droit fiscal international 2020: Reconstructing the treaty network (2020)

European Union law overlaps and interacts with both the OECD’s Base Erosion and Profit Shifting project (BEPS) and its implementation and the member states’ tax treaties between them and with third ... [more ▼]

European Union law overlaps and interacts with both the OECD’s Base Erosion and Profit Shifting project (BEPS) and its implementation and the member states’ tax treaties between them and with third countries, and there is also an area where all three fields meet. This intersection of EU law, BEPS and member states’ (mostly) bilateral tax treaties is the subject of this report. [less ▲]

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See detailThe General Scope of the ATAD and its Position in the EU Legal Order
Haslehner, Werner UL

in Haslehner, Werner; Pantazatou, Aikaterini; Kofler, Georg (Eds.) et al A Practical Guide to the Anti-Tax Avoidance Directive (2020)

This chapter analyses the scope of the anti-tax avoidance directive (ATAD) as implemented in 2020 and its positioning within the EU legal order, in particular vis-à-vis primary EU law, national tax rules ... [more ▼]

This chapter analyses the scope of the anti-tax avoidance directive (ATAD) as implemented in 2020 and its positioning within the EU legal order, in particular vis-à-vis primary EU law, national tax rules, and bilateral tax agreements. It examines the interpretation of the provisions of the ATAD and their compatibility with higher ranking norms, such as the fundamental freedoms, State aid rules, and fundamental rights. [less ▲]

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