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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 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 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 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 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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See detailThe Apple State Aid Case
Haslehner, Werner UL; Ancora, Antonio UL

in Lang, Michael; Pistone, Pasquale; Rust, Alexander (Eds.) et al CJEU - Recent Developments in Direct Taxation 2019 (2020)

The Apple Case raises a number of questions concerning the application of State aid review to the taxation of multinational entities. The case’s prominence stems primarily from the taxpayer’s brand ... [more ▼]

The Apple Case raises a number of questions concerning the application of State aid review to the taxation of multinational entities. The case’s prominence stems primarily from the taxpayer’s brand recognition and the amount of taxes at stake; the legal questions raised, however, are interesting in their own right: the case differs in several respects from the previously decided Fiat and Starbucks cases, leaving the outcome quite open. First, while it has been held by the General Court in those previous cases that the arm’s length principle can be used as a yardstick to assess transfer prices accepted by a Member State’s administration, it is not inevitable that this implies the similar applicability of the AOA to branches of non-resident companies. Second, the application of the AOA appears only to be leading to a decisive win for the Commission if the Court agrees that the US head offices do not exercise important functions related to Apple’s IP. As the Commission both accepted the claim that the subsidiaries’ effective management and control was exercised there and did not challenge the CSA (and – by implication – accepted the reality of ownership of IP by those subsidiaries), this may turn out to be difficult to prove. A third doubt arises from the apparent acceptance by the Commission that the aid granted by Ireland could be reduced to the extent that other countries would make valid claims to tax the same profits that the Commission considers attributable to the Irish branches, especially in light of the fact that it appears the entirety of the relevant profits can be included in US taxation following the reforms introduced with the 2017 Tax Cuts and Jobs Act with respect to global intangible low-taxed income. That being said, the Commission is surely on stronger ground in claiming that the Irish tax system as applied in practice may have left too much discretion to tax authorities in any given case. It will be interesting to see how much weight the Court will give to the paucity of available documentation from the time of the tax rulings, and how it will consider the transfer-pricing reports produced ex post facto to justify the outcome when the Commission investigated them. [less ▲]

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See detailA Guide to the Anti-Tax Avoidance Directive
Haslehner, Werner UL; Kofler, Georg; Pantazatou, Katerina et al

Book published by Edward Elgar (2020)

This book provides a concise, practical guide to the European Union’s Anti-Tax Avoidance Directive (ATAD). Presenting unique insights into the ATAD’s five specific anti-avoidance rules, its chapters ... [more ▼]

This book provides a concise, practical guide to the European Union’s Anti-Tax Avoidance Directive (ATAD). Presenting unique insights into the ATAD’s five specific anti-avoidance rules, its chapters explain the background of those rules, the directive’s interactions with relevant jurisprudence, and the challenges posed to the ATAD’s interpretation and implementation in domestic law. Key features include: • critical, article-by-article analysis of the ATAD • contextual information on the legislative environment in which the ATAD operates, embedding it in the wider landscape of CJEU jurisprudence • insights into the day-to-day application of the ATAD rules in practice • contributions from leading academics and practitioners in the field of tax law • examples of the challenges to the interpretation and implementation of ATAD, taken from a range of EU Member States. European and international tax advisors, along with policy makers in the field of tax law, will find this book to be a comprehensive yet accessible guide to the ATAD and its correct application. Those who carry out research in European tax law can also benefit from this book’s critical approach to the ATAD and the questions that surround anti-tax avoidance legislation in the European Union. [less ▲]

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See detailTax Procedures in Luxembourg
Chaouche, Fatima; Haslehner, Werner UL

in Tax Procedures (2020)

This contribution provides an overview of Luxembourg tax procedures and answers a number of questions regarding the administrative law principles governing the collection of taxation, audit, and appeals ... [more ▼]

This contribution provides an overview of Luxembourg tax procedures and answers a number of questions regarding the administrative law principles governing the collection of taxation, audit, and appeals procedures. It was prepared as a contribution to the 2019 Annual Congress of the European Association of Tax Law Professors, which was devoted to tax procedures. [less ▲]

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See detailA Guide to the Anti-Tax Avoidance Directive
Haslehner, Werner UL; Pantazatou, Aikaterini UL; Kofler, Georg et al

Book published by Edward Elgar (2020)

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See detailOpinion Statement ECJ-TF 1/2020 on the General Court Decisions of 24 September 2019 in "Starbucks" and "Fiat" on State Aid Granted by Transfer Pricing Rulings
Haslehner, Werner UL; Garcia Prats, Alfredo; Heydt, Volker et al

in European Taxation (2020), 60(5), 222-230

This CFE Opinion Statement, submitted to the EU Institutions on 28 January 2020, discusses the General Court decisions of 24 September 2019 in The Netherlands v. Commission (Starbucks) (Joined Cases C-760 ... [more ▼]

This CFE Opinion Statement, submitted to the EU Institutions on 28 January 2020, discusses the General Court decisions of 24 September 2019 in The Netherlands v. Commission (Starbucks) (Joined Cases C-760/15 and T-636/16) and Luxembourg v. Commission (Fiat Finance and Trade) (Joined Cases T-755/15 and T-759/15), on State aid granted by transfer pricing rulings. [less ▲]

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