1,721,152 research outputs found
Equality, ability to pay and neutrality
No full textThe Chapter examines the principles of neutrality, equality and ability to pay and their impact on the EU legal order. In the first part, it considers the theoretical meaning and the structure of those principles, and review the historical and current role of ability to pay under Member State tax systems. At the EU law level, it is shown that both the fundamental freedoms and secondary EU tax law have incorporated concepts of neutrality, equality and ability to pay under their normative framework. The Chapter concludes with an outlook on the link between Eu tax approximation and public goods provided by the different Member States
Taxation, Data and Destination - An Analysis of the Compatibility of a Digitalized Destination-Based Corporate Tax and a Destination-Based Cash-Flow Tax with International and EU Tax and Data Protection Law Frameworks
No full textThe digitalized economy poses challenges and issues to traditional corporate taxation that require modifications in the way companies are taxed under international tax law. The thesis discusses two tax proposals to face some of the main issues, such as the intangibility of business assets and operations, the lack of physical presence of businesses in market jurisdictions, as well as non-taxation under both corporate income tax and value added tax in these jurisdictions. One of the tax proposals is the destination-based cash-flow tax that has been elaborated on mainly in economic literature. The other proposal has been drafted by the author and is named "digitalized destination-based corporate tax". The thesis analyzes the business and legal context in which the two taxes would operate: beyond the testing of the two model taxes against several digitalized business models, the relevant legal frameworks known in taxation and composed by double taxation conventions, EU law and WTO law are analyzed. Moreover, considering that the place of destination is determined by reference to the place of customers or users, corporate taxpayers likely need to collect and process (personal) data of these third parties in order to determine their place of tax liability. Thus, the thesis also examines potential data protection law interferences
The Court of Justice's interaction with the EU legislature in interpreting and applying primary law
No full textThe thesis addresses the following question: what is the Court of Justice’s interaction with the EU legislature in interpreting and applying primary law? At first sight, the answer appears rather straightforward. EU legislation is hierarchically subordinate to EU primary law. All the primary law sources – the Treaties, the Charter of Fundamental Rights and so on – constitute, according to the Court’s own words, the ‘constitutional framework’ of the Union. The EU legal order thus possesses a clear normative hierarchy similar to national legal systems, where legislative norms appear subservient to the constitutional norms. In addition, the Court of Justice has been vested by the Treaties with a monopoly to safeguard this hierarchy within the EU legal order, having exclusive jurisdiction to annul EU legislation for violating EU primary law. Therefore, the seemingly straightforward answer to the question posed by the thesis is that the Court of Justice is virtually omnipotent in its interaction with the EU legislature as regards the interpretation and application of primary law.
Nonetheless, even though the Treaties confer on the Court the role to scrutinise the acts of the EU legislature for their compliance with primary law, they are silent on the degree of that scrutiny. Several scholars have already advanced convincing arguments on why the Court should in principle respect the choices of the EU legislature. While, however, this normative argument on how the Court should interact with the EU legislature has been thoroughly articulated in the literature, the same cannot be said of the descriptive assessment of how this interaction has actually unfolded in the Court’s case-law.
The thesis seeks to provide a critical and as comprehensive as possible descriptive analysis of the Court’s case-law. It does so by examining six types of interaction between the Court and the EU legislature in the Court’s case-law: first, the discretion afforded by the Court to the EU legislature when reviewing the validity of EU legislation for its compliance with primary law; second, the Court’s interpretation of EU legislation in the light of primary law, with particular emphasis on cases in which the Court disregards the clear wording of a legislative provision – or, more broadly, the will of the EU legislature – in order to ‘reconcile’ its meaning with primary law; third, the Court’s interpretation and application of primary law in the absence of EU legislation and, in particular, whether the Court takes account of the will of the EU legislature as reflected in the broader legislative framework or in its resistance to Commission’s legislative proposals; fourth, the EU legislature’s power to revise its own assessments by amending legislation, even where that legislation has previously been interpreted and applied by the Court in light of primary law; and fifth, the EU legislature’s power to depart from earlier standalone interpretations of the Court on primary law. These five types of interaction are particularly examined in the fields of internal market integration, fundamental rights protection, EU citizens’ rights and direct taxation.
The main conclusion of the thesis is that the Court’s interaction with the EU legislature is more deferential than what has been generally perceived in the literature
Legitimate expectations in Luxembourg tax law - A study of administrative circulars and tax rulings issued by the Luxembourg tax authorities
No full textThis thesis analyzes the status of tax circulars and tax rulings in domestic law. More precisely, by first studying the status of each of these administrative interpretative acts, I then investigate their enforceability before domestic courts and enquire to what extent unlawful circulars and contra legem rulings can be relied upon by virtue of the principle of legitimate expectations. After extracting a series of shortcomings in the protection of taxpayers who rely on such administrative interpretative acts, I then, articulate from a normative perspective, what I claim to be the appropriate level of protection for contra legem circulars and advance decisions in the Luxembourg legal order
Spanish national report for EATLP Congress: taxation and value creation
No full textChapter based on the Spanish report for the 2020 annual congress of the EATLP on “Taxation and Value Creation.” Section 1 aims to understand the role that “value” plays in Spanish income taxes (Personal Income Tax and Corporate Income Tax). The objective is to determine whether income taxation in Spain is based on the idea of how and where value is created. This requires clarifying the meaning of terms related to “value” and its connection to the definition of income, as well as analyzing which changes in asset value have tax implications. Section 2 seeks to establish whether Spanish domestic legislation has responded to concerns arising from the digitalization of the economy and, if so, whether such changes are based on the idea that taxation should follow value creation.Ministerio de Economía, Comercio y EmpresaDepto. de Derecho Mercantil, Financiero y TributarioFac. de DerechoFALSEpu
Investment Fund Taxation - Domestic Law, EU Law, and Double Taxation Treaties
Get PDFThe book covers the central questions arising in national law and tax policy, explores the regulatory and tax framework of the European Union (EU), and discusses the multifaceted interactions of both national and EU law with bilateral tax treaties. Through fourteen chapters following the editor's introduction, leading academic experts and practising specialists provide insights into all the most relevant aspects of funds taxation
Value Creation and Inter-nation Equity
Get PDFThe contribution investigates whether any kind of value creation based allocation can be justified with the idea of inter-nation equity and explores whether a change of attribution to attribution on the basis of a standard of "value creation" would result in a fairer distribution of taxing rights at the global leve
Nationality Non-Discrimination under Article 24(1) of the OECD Model: New Frontiers
No full texteditorial reviewedThis chapter seeks to address questions surrounding the application of the “nationality non-discrimination” provision found in most tax treaties. To this end, the analysis focuses on the rules provided for in article 24 of the OECD Model Tax Convention on Income and on Capital and the relevant parts of the OECD Commentary thereof.
As the author has already addressed questions surrounding the application of article 24(1) in an earlier volume of this series, this contribution seeks to analyse later developments in treaty practice, case law and doctrinal analysis with respect to nationality discrimination.
The chapter is divided into five sections. Following this introduction, section 2.2. briefly lays out some recent developments in tax treaty policy relating to non-discrimination. Section 2.3. provides an overview over recent case law concerning the interpretation of article 24(1). Of particular interest is the reception of the most recent – albeit not very recent – changes introduced in the OECD Commentary in 2008 in highest court judgments. Section 2.4. addresses the difficulty of applying article 24(1) to companies and the impact of the new tiebreaker rule introduced in the 2017 version of article 4(3) of the OECD Model. Section 2.5. reintroduces the concept of a combined application of non-discrimination rules for instances of complex discrimination, which has the potential to increase the practical relevance of the nationality non-discrimination rule. Since nationality is rarely if ever the sole basis of a distinction in tax law, this is of particular relevance for article 24(1). Section 2.6. summarizes the results and concludes.16. Peace, justice and strong institution
Value Creation and Inter-nation Equity
Get PDFThe contribution investigates whether any kind of value creation based allocation can be justified with the idea of inter-nation equity and explores whether a change of attribution to attribution on the basis of a standard of "value creation" would result in a fairer distribution of taxing rights at the global leve
Value Creation and Inter-nation Equity
Get PDFThe contribution investigates whether any kind of value creation based allocation can be justified with the idea of inter-nation equity and explores whether a change of attribution to attribution on the basis of a standard of "value creation" would result in a fairer distribution of taxing rights at the global leve
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