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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 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 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 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; 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 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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See detailA Multilateral Interpretation of the Multilateral Instrument (and Covered Tax Agreements)?
Haslehner, Werner UL

in Bulletin for International Taxation (2020), 74(4/5),

The analysis of the multilateral nature of the interpretation processes created by the MLI shows that very little “true multilateralism” arises from its adoption. At its core, the international tax system ... [more ▼]

The analysis of the multilateral nature of the interpretation processes created by the MLI shows that very little “true multilateralism” arises from its adoption. At its core, the international tax system remains fragmented and built on bilateral agreements, with only a thin overlay of multilateral agreement on selected issues. The MLI does not set up a multilateral dispute resolution mechanism. The Conference of the Parties as the only true multilateral body created by the MLI plays a very small – if any – role in the interpretation and application of tax treaty rules. Neither has the MLI produced a system where national courts would have a stronger basis to enforce the harmonious interpretation of treaty terms in both contracting states (let alone among all Parties to the MLI) beyond the general appeal of such approach that already exists prior to – and outside the scope of – the MLI. If a coherent interpretation of CTAs with a view to achieve something like the elusive “single tax principle” was indeed a goal behind the project as a whole, the rules on interpretation applicable following the MLI’s adoption do not amount to a codification of that ideal, although the MLI can, in specific circumstances, have an interpretative effect on tax treaties even where it does not result in a modification of the norms in that treaty. Decision harmony among courts in different countries, therefore, remains an ideal that cannot be based in substance on the existence of the MLI. [less ▲]

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See detailOpinion Statement ECJ TF 4/2019 on the ECJ Decision of 26 February 2019 in X-GmbH (Case C-135/17), Concerning the Application of the German CFC Legislation in Relation to Third Countries
Haslehner, Werner UL; García Prats, Alfredo; Heydt, Volker et al

in European Taxation (2020), 60(4), 152-157

This CFE Opinion Statement, submitted to the EU institutions on 12 December 2019, comments on the decision in X-GmbH (Case C-135/17), in respect of which the Court of Justice of the European Union (Grand ... [more ▼]

This CFE Opinion Statement, submitted to the EU institutions on 12 December 2019, comments on the decision in X-GmbH (Case C-135/17), in respect of which the Court of Justice of the European Union (Grand Chamber) (ECJ) delivered its decision on 26 February 2019. In general terms, the ECJ largely followed the Opinion given by Advocate General Mengozzi on 5 December 2018. [less ▲]

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See detailOpinion Statement ECJ-TF 3/2019 on the ECJ Decision of 22 November 2018 in Sofina (Case C-575/17) on Withholding Taxes, Losses, and Territoriality
Haslehner, Werner UL; Garcia Prats, Alfredo; Heydt, Volker et al

in European Taxation (2020), 60(2/3), 91-97

This CFE Opinion Statement, submitted to the EU Institutions on 10 October 2019, comments on the Decision in Sofina (Case C-575/17), in respect of which the Fifth Chamber of the ECJ delivered its decision ... [more ▼]

This CFE Opinion Statement, submitted to the EU Institutions on 10 October 2019, comments on the Decision in Sofina (Case C-575/17), in respect of which the Fifth Chamber of the ECJ delivered its decision on 22 November 2018. The Court held that the imposition of French dividend withholding tax violated the freedom of capital movement in light of the non- resident’s overall loss situation. [less ▲]

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See detailThe ATAD and the CCTB
Haslehner, Werner UL

in Bizioli, Gianluigi; Grandinetti, Mario; Parada, Leopoldo (Eds.) et al Corporate Taxation, Group Debt Funding and Base Erosion - New Perspectives on the EU Anti-Tax Avoidance Directive (2020)

This short chapter analyses the relationship between the interest limitation rules laid down in the Anti-Tax Avoidance Directive (ATAD) and the Proposed Directive on a Common Corporate Tax Base (CCTB ... [more ▼]

This short chapter analyses the relationship between the interest limitation rules laid down in the Anti-Tax Avoidance Directive (ATAD) and the Proposed Directive on a Common Corporate Tax Base (CCTB). Both are substantially congruent with very few differences in their content. Nevertheless, there are several aspects of the relationship between the two directives that raise fundamental questions as to their respective impacts on national law. Accordingly, this contribution aims to highlight, first, the general relationship between European Union (EU) directives, second, the specific relationship between the ATAD and the CCTB – if and when it is adopted – and, third, comments on the few variations in their respective provisions on interest limitation. [less ▲]

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See detailTransfer pricing rules and State aid law
Haslehner, Werner UL

in Panayi, Christiana HJI; Haslehner, Werner; Traversa, Edoardo (Eds.) Research Handbook European Union Taxation Law (2020)

This contribution addresses the interaction of State aid law with transfer pricing rules. A number of high-profile investigations into transfer pricing arrangements approved by Member States’ authorities ... [more ▼]

This contribution addresses the interaction of State aid law with transfer pricing rules. A number of high-profile investigations into transfer pricing arrangements approved by Member States’ authorities, including for companies like Amazon, Apple, and Starbucks has sparked fierce debate over the existence of an EU principle of “arm’s length” taxation and its possible content. The chapter examines this debate and issues pertaining to the relationship between State aid law and double taxation treaties, justifications on the basis of providing double tax relief or protection from tax avoidance, and the scope of administrative discretion that State aid law needs to accord in a highly technical area of national law such as transfer pricing. [less ▲]

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See detailIntroduction to Research Handbook on European Union Taxation Law
Panayi, Christiana; Haslehner, Werner UL; Traversa, Edoardo

in Panayi, Christiana; Haslehner, Werner; Traversa, Edoardo (Eds.) Research Handbook European Union Taxation Law (2020)

This introduction lays out the reasons for deeper research in European Union tax law and provides an overview of the topics covered in the research handbook edited by the authors.

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