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Both Anti-Tax Avoidance Directive (atad) 1 and 2 contain specific provisions to tackle hybrid mismatches. As a matter of principle it has been decided to not remove the cause of hybrid mismatches within the internal market but to counter only a few of the symptoms of hybrid mismatches. In this article the authors discuss both the measures from atad 1 and 2 regarding hybrid mismatches, mainly focussing on hybrid mismatches caused by the use of (reverse) hybrid entities. Overall, the approach chosen by the Council does seem to close many of the existing loopholes were hybrid mismatches are used. Main remaining question is whether all twenty-seven Member States will be able to consistently implement the complex anti-mismatch rules. The authors see it as a missed chance that in the ATAD it has not been decided to address the very cause of hybrid mismatches. Cases of double taxation and hybrid mismatches with individuals are disregarded. [ABSTRACT FROM AUTHOR]

The Court of Justice of the European Union (CJEU) ruled on several occasions that, while international double taxation may hinder the fundamental freedoms guaranteed by European Union (EU) law, it can nevertheless not be considered as a forbidden restriction to the extent that (direct) tax law is not harmonized. It is a result of the overlapping tax competences of the EU Member States. Conversely, in Switzerland, the Tribunal Fédéral held that inter-cantonal double taxation was contrary to the Swiss free movement of persons. In 2015 also the US Supreme Court decided in Maryland v. Wynne that interstate double taxation unconstitutionally discriminated against interstate commerce. The purpose of the current contribution is to compare the EU with the Swiss and the US fundamental freedoms in order to find a justification for these different approaches. Our comparative research shows that at least in certain circumstances international double taxation within the EU is contrary to the EU fundamental freedoms. We suggest a more comprehensive analysis following the example of the Swiss territory-based allocation rules and the US internal consistency test. [ABSTRACT FROM AUTHOR]

The EU Court of Justice recently confirmed that EU Member States have a duty to cooperate to help ensure that Value Added Tax (VAT) is correctly assessed. In the Court's view, this implies that they have to exchange information whenever a request for information may prove expedient, or even necessary for determining where the VAT is due. This judgment deviates from former case law. It may considerably affect the rights of taxable persons facing a double VAT taxation of their transactions. This article provides an overview of (possible) implications of this judgment. [ABSTRACT FROM AUTHOR]

This article provides an overview of the CJEU case law on double taxation of cross-border inheritances. Legal concepts like disparities and conflicts of tax jurisdiction principles will be discussed and commented on. Furthermore, the author comments on the effectiveness of the EC Recommendation 2011/856/EU regarding the relief for double taxation of inheritances. He examines the EC Recommendation in order to ascertain whether its distributive provisions eliminate the double taxation problems or whether other coordination/harmonization initiatives are necessary for the taxpayers' protection. [ABSTRACT FROM AUTHOR]

The principle of fairness advocates against international double taxation and international double non-taxation. Countries and international organizations (OECD, G20 and EU) have taken several initiatives against such taxation. However, these initiatives are not always effective. Also, certain legal authors question the legitimacy of the OECD and its action plan on BEPS. The essential goal of this research is tofind guidelines to address international double (non-) taxation. Wefirst argue that the principle of fairness is reflected in the legal principles of proportionality, non-discrimination and the rule of law. Subsequently, we derive guidelines from these principles. We address the research question by reference to these principles as enshrined in the European Convention on Human Rights (ECHR) and in the constitutional orders of Belgium, France, Germany and the United Kingdom. Our main conclusion is that excessive international double taxation and unintended international double non-taxation do not sit well with a comprehensive approach as advocated by the legal principles. We also argue that the rule of law requires the national states to guarantee the balancing of all relevant national interests through in-depth parliamentary debate. Finally, we submit that cross-pollination between international organizations and national parliaments would contribute to the legitimacy of those organizations. [ABSTRACT FROM AUTHOR]

The important but little-known Article 4, paragraph 3 of the Treaty on the European Union (TEU) expresses the principle of Union Loyalty. This article includes the principle of sincere cooperation and the obligation for Member States to help and not hinder the Union. The broad wording of this principle and its apparent obviousness falsely suggest that it is of secondary importance. In practice, the principle of Union loyalty proved decisive in capturing the precise obligations of Member States, in particular where the Treaty itself offered no solution. Not for nothing, the principle of Union loyalty is considered to be one of the main principles of the EU Treaty in legal literature. After a brief analysis of the legal context and the general meaning of the principle of Union loyalty, this article intends to examine the impact of this principle in tax matters. Based on Article 4, paragraph 3, TEU, the ECJ developed numerous principles to ensure the effectiveness of European tax measures and to make sure that - in the exercise of their sovereign fiscal powers too - Member States do not put the full functioning of the Union at risk. [ABSTRACT FROM AUTHOR]

After the financial and economic crisis the principle of the ability to pay has regained importance as a principle shaping the structure of income tax. This article deals with the question whether that principle has any role to play in the application of EU tax rules. It analyses whether there is a legal basis to apply this principle in EU law and the way in which this principle is applied in cross-border situations. The conclusion is that although ability to pay is part of the general principles of EU law, there is no clear legal basis in the treaties for the principle to be applied. The absence of this legal basis combined with the one country approach of the ECJ in discrimination cases results in an occasional and inconsistent application of the ability to pay principle. [ABSTRACT FROM AUTHOR]

This article provides a comprehensive summary of the new place of supply rules regarding electronic services ('e-services') supplied to non-taxable persons with a special focus on electronically supplied services. The new rules, which apply as from 1 January 2015, are interpreted especially on the basis of the Explanatory Notes on the European Union ('EU') Value Added Tax ('VAT') changes to the place of supply of telecommunications, broadcasting and electronic services that enter into force in 2015 (Council Implementing Regulation (EU) No. 1042/2013) published on 3 April 2014 by the European Commission ('EC'). The article aims to illustrate important impacts of the new rules on the VAT Law of the different EU Member States with particular regard to Germany. E-business as well as local tax authorities are faced with significant challenges in order to apply the new rules governing the place of supply of eservices correctly. The article deals especially with the definition of electronically supplied services, the determination of the location of the customer including presumption rules, the service commission framework and the mini One-Stop Shop ('MOSS') scheme. Some important weaknesses of the new rules are pointed out. Precisely, potential double taxation situations, technical, economical and legal difficulties in connection with the determination of the location of the customer and potential infringements of EU Law are discussed. The author analyses potentials for improvement not only on EU but also on German Level. Finally, useful information regarding the new introduced MOSS scheme is provided. [ABSTRACT FROM AUTHOR]

Because the Netherlands and Germany approach the taxation of private use of company cars for VAT differently this may result in double or non-taxation. Double taxation in case the employer is a Dutch entrepreneur and the employee lives in Germany. Nontaxation if the employer is a German entrepreneur and the employee lives in the Netherlands. In this article the author seeks the answer to the question which country applies the correct approach. Her conclusion is that the legislation in both countries needs adjustment. [ABSTRACT FROM AUTHOR]

Inheritance taxes are direct taxes that are levied upon the death of a person. As direct taxes, they are closely connected to the fiscal sovereignty of Member States, falling within their competence. However, these taxes can set serious obstacles to the functioning of the internal market while the absence of appropriate ways of relieving cumulative taxation of inheritances may lead to levels of taxation that are appreciably higher than those applicable in situations that are purely internal to one or other of the Member States involved. At this article, the case law of European Court of Justice concerning inheritance taxes will be reviewed and commented on, including the most recent decisions of ECJ, while there will be an extensive presentation of the double taxation problem, caused by the application of inheritance taxes by two or more Member States. [ABSTRACT FROM AUTHOR]

Countries around the world have traditionally treated tax planning as a legitimate practice, unless the ambiguous borders to abusive behaviour have been crossed. However, over time, business structures have become more sophisticated and tax authorities have become involved in keeping pace with the continuous improvement of international tax planning. By exploiting the inconsistencies between domestic tax rules and bilateral double taxation conventions it is even possible that certain income remains completely untaxed. In order to properly address this issue of double non-taxation, the European Commission - alongside the work of the OECD on Base Erosion and Profit Shifting (BEPS) - issued a recommendation on aggressive tax planning. The EU Member States are, inter alia, being encouraged to revise their tax treaty policies. The European Commission recommends the incorporation of a general subject-to-tax clause in the Member States' bilateral double taxation conventions. This article analyses whether the Member States are well advised to follow this recommendation. [ABSTRACT FROM AUTHOR]

This article addresses the relations between justification grounds for direct tax restrictions on freedom of movement and the overlap of the technical requirements of their application as developed by the Court of Justice of the European Union (CJEU). The central point of this article is that the need to prevent abusive practices and fraud can be construed as a composite of the need to safeguard the balanced allocation of taxing powers and the need to ensure effective fiscal supervision. To support this argument, a legal analysis of the case law of the CJEU will be carried out that results in a legal inventory and review of the requirements for each imperative requirement. This article then shows how the requirements for those justifications coincide and the way in which these requirements derive from general principles of European Union (EU) law. [ABSTRACT FROM AUTHOR]

This article focuses on the scope and the different forms of tax recovery assistance provided by EU-directive 2010/24: exchange of information, presence of officials in another Member State, assistance for the notification of documents, and assistance by taking recovery or precautionary measures in the requested Member State. [ABSTRACT FROM AUTHOR]

After the financial and economic crisis the principle of the ability to pay has regained importance as a principle shaping the structure of income tax. This article deals with the question whether that principle has any role to play in the application of EU tax rules. It analyses whether there is a legal basis to apply this principle in EU law and the way in which this principle is applied in cross-border situations. The conclusion is that although ability to pay is part of the general principles of EU law, there is no clear legal basis in the treaties for the principle to be applied. The absence of this legal basis combined with the one country approach of the ECJ in discrimination cases results in an occasional and inconsistent application of the ability to pay principle. [ABSTRACT FROM AUTHOR]

With its judgment in the 3D I case, the Court has issued a useful reminder of the statutory limits of the EU Merger Directive. Although the tax deferral regime provided by the Directive is the standard for corporate reorganizations in the EU, it does not go beyond the temporary non-recognition of gains realized because of reorganization. Most notably, it does not concern the elimination of economicdouble taxation resulting from the transfer of assets into a corporate subsidiary [ABSTRACT FROM AUTHOR]

As of 1 January 2012, the Dutch corporate income tax (CIT) system provides for international juridical double tax relief (DTR) under a mechanism referred to in Dutch tax practice as the 'base exemption for foreign business profits' (author's translation). The newly introduced DTR mechanism replaces the Dutch-style 'tax exemption with progression method' in the area of corporate taxation regarding proceeds derived from foreign-source business activities. The rationale for this legislative shift, according to the Dutch tax legislator, is to arrive at an augmented level of converged tax treatment for corporate taxpayers carrying on business operations abroad either directly (i.e., through a permanent establishment; 'PE') or indirectly (i.e., through a subsidiary). One of the introduced tax effects is that current losses suffered by resident corporate taxpayers from business activities carried on abroad through a PE are no longer taken into account for CIT calculation purposes. The tax legislator implicitly justifies its amendments by labelling the immediate horizontal cross-border loss set-off possibilities as available under the former DTR mechanism as a cash flow advantage granted to Dutch resident corporate taxpayers. That characterization reveals an underlying normative consideration. We do away with an 'advantage' to arrive at a taxing system devoid of anomalies at this point. The Dutch tax legislator suggests an improvement. But has he not in fact created a disadvantage? And, by doing so, infringed upon the spirit of the internal market within the European Union (EU) in the process? [ABSTRACT FROM AUTHOR]

The author reflects on the European Court of Justice (ECJ) rulings regarding income taxes recovery in order to handle budgetary problems. He states that ECJ gave more leeway to the Member States than it did in some cases such as Scorpio case, Truck Center case, and the Feyenoord case. He also says that collecting taxes from the non-residents which are not holding a property in the state is difficult.

In December 2011 the European Commission ('EC') adopted a package of instruments to tackle the difficulties regarding cross-border inheritance tax. One of these difficulties concerns the existence of unrelieved double or multiple taxation. Tax treaties (if present) and unilateral systems of relief do not always effectively prevent this. By means of a Recommendation the EC suggests how Member States could improve their unilateral systems of relief and presses them to do so. The article starts by examining the possible causes of double or multiple taxation. In general there is an enormous variety of rules in Member States' inheritance tax systems; they all connect to a different factor for applying inheritance tax and use different concepts of residence and situs assets. Subsequently the international order of priority of taxing rights is discussed. The State of situs normally has the strongest taxation rights, followed by the State in which the deceased was domiciled or resident. This order of priority can also be found in the EC Recommendation, which finally is considered and evaluated. [ABSTRACT FROM AUTHOR]

Double tax conventions on income and capital (DTC) build bridges between the economies of the contracting States. This paper discusses the position of DTCs in the EU based on two questions: (1) What was, is, will be, should have been, and should be the role of DTCs in the EU? (2) How did affect, does affect, will affect, should have affected, and should affect EU law DTCs? To answer these questions, the paper will look back, at the state of the art, and to the future. After setting a benchmark, it will discuss the past, starting with Art. 220 EEC Treaty (repealed in 2009), the Neumark Report (1962), the preliminary draft EC Multilateral Tax Convention on Income and Capital (1968), the Ruding Report (1992) and the European Commission's initiative on EC law and tax treaties (2005). The current position will primarily be discussed based on a number of issues addressed by the CJEU. The future will be discussed based on the recent Commission's communication on double taxation and the internal market and the instrument of a redeveloped EU Model Tax Convention. After fifty years of talk after the Neumark Report, it is now time for real and accurate actions within the EU in respect of DTCs. The paper ends with a call to the Commission and the Council to take the lead. [ABSTRACT FROM AUTHOR]

A movement of relocation, or rather a geographical dispersion of people and assets, is increasingly appearing within the European borders, as well as beyond them. Recent studies have shown that many legal and practical obstacles deter European Union (EU) citizens from actually exercising their freedom to move across borders within the EU. Especially, several indicators prove that some difficulties still remain in the practice of inheritance in cross-border situations. In respect of taxation, the problems consist mainly of double taxation and discriminatory tax treatment. These last ten years, the legislation of the Member States has progressively complied with EU law requirements and the difference of treatment between residents and non-residents is beginning to disappear completely. Today, the most important obstacles to the free movement of European citizens are due to the risk of double taxation of inheritances by several Member States. In this respect, the Court of Justice is powerless since its power of interpretation does not allow it to arbitrate between the Member States' taxation powers. Aware of this problem, the European Commission has recently adopted a set of measures destined to improve the coordination between the states legislations in order to fight the double taxation on inheritances. [ABSTRACT FROM AUTHOR]

No clear-cut provision of the Treaty on the Functioning of the European Union (TFEU) provides for a prohibition of double taxation, be it legal or economic. It may, however, be assumed that this prohibition is implicit, as a means to achieve the single market. When it is basically the aim of double tax conventions to prevent double taxation, such Conventions may not cover all possible situations. For these non-envisaged situations, if they entail cross-border aspects within the EU, the European Court of Justice (ECJ) has a mission of guiding the Member States, keeping into mind that their first care will probably be their own national budgets. Different approaches may be discovered in the recent case law of the Court. When some judgments, principally pronounced in the period 2006-2009, were marked by a multilateral approach having regard for the impact in country B of a given levy of tax in country A, other judgments restricted the scope of analyses to a given country, with no consideration for adverse consequences suffered elsewhere by taxpayers. The judgments developing the multilateral approach are interesting particularly for the decisive role they allow to double tax conventions, recognized as integral part of the tax legislation of Member States. [ABSTRACT FROM AUTHOR]

The Damseaux judgment of 16 July 2009 (Case C-128/08) marks the unsuccessful end of the efforts deployed by Belgian taxpayers and by the European Commission (Case C-307/08, Commission v. Belgium, presumably to be dropped shortly) to have Belgium shoulder responsibility (by way of the grant of a foreign tax credit) for the French withholding tax on outbound dividends received by Belgian taxpayers. We will review these efforts hereinafter, and the factors that appear to have led to their unsuccessful outcome. We will also argue that Mr Damseaux might have been more successful in his efforts to avoid the double taxation of his French dividends if he had, instead, lodged a claim against the French tax authorities: He could have argued that the French withholding tax is levied in breach of European law following the end of the reimbursement by the French tax authorities to Belgian resident shareholders of the French 'Avoir Fiscal'. [ABSTRACT FROM AUTHOR]

The author reflects on the mobility of the European Union (EU) citizens and Family Taxation procedures and the difficulties in reconciling the differences involving both the issues. Reference is made to the provisions in the Treaty on the Functioning of the European Union (TFEU) on discrimination and taxation issues. There are references to many court cases to clarify the points under consideration.

The author reflects on the aspects of anti-hybrid taxation under the Parent-Subsidiary Directive financial instrument in European Union (EU) countries. Topics discussed include the scope of the rule in the obligation on tax, the Hybrid Mismatch Arrangement proposed in opposition on the instrument by the Organization for Economic Co-operation and Development (OECD) members, and the application of the anti-avoidance element opted in the financial instrument.

The author reflects on the European Commission's identified tax problems within the European Union (EU) consists mainly of double taxation and discriminatory tax treatment. He notes that inheritance tax problems are among the twenty top problems faced by EU citizens and small- and medium-sized businesses. He explains that the taxation guidelines aim to assist EU members to bring their inheritance tax provisions into line with EU law and to inform citizens on the rules that members must respect.

The author reflects on the elimination of double taxation as the objective of the European Union (EU). He said that this position is discussed in the case which points out that the fundamental freedoms allow the Member States to determine the structural elements of their own tax level. He also claimed that elimination of double taxation is realized under the exemption and ordinary tax credit methods.

The author discusses the European Union Action Plan adopted by the European Commission to fight against tax fraud and evasion. He states that the Commission recommends a series of new actions on the creation of a Platform for Good Tax Governance and improvements to the Code of conduct. He mentions that the plan recommends Member States to include Double Tax Conventions (DTCs) to address aggressive tax planning.

The article reports on the litigation of the Pirelli Cable Holding NV and others revenue and customs commissioners. It focuses on the issue whether the Great Britain's obligation to provide restitution or compensation should be offset in conditions where an European Union's parent company is entitled to a dividend tax credit pursuant to a double tax agreement between Great Britain and that other Member State. In relation, the arguments raised by taxpayers on the issue are discussed.

The article focuses on the opinion of Advocate General Wattel regarding a tax-sparing credit case against the most-favored-nation principle before the Supreme Court of the Netherlands. It discusses the facts of the case in which a Spanish holding company had a 100-percent share in a Dutch company. Advocate General Wattel believed that a tax-sparing credit should not be allowed to the Dutch company based on the most-favored-nation principle.