Predicting the ‘Unpredictable’ General Anti-Avoidance Rule (GAAR) in EU Tax Law

My paper ‘Predicting the ‘Unpredictable’ General Anti-Avoidance Rule (GAAR) in EU Tax Law’ is published at InterEULawEast Vol.5 No.1 June 2018. Thanks for reviewers and editirs’ effort, so the publication process is really efficient. The original idea was presented in several conferences in 2016, and I also appreciate all conference participants’ feedback and suggestions.

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Predicting the ‘Unpredictable’ General Anti-Avoidance Rule (GAAR) in EU Tax Law


Abstracts


General Anti-Avoidance Rule (GAAR) is a type of rule designed to combat the tax-avoidance scenarios that in a legal form lawfully but aims to circumvent the legal consequences. GAAR is necessary for a tax system to address unexpected innovative tax avoidance scenarios. In the field of tax law, GAAR has been criticized for being too abstract and thus harmful to legal certainty. In the context of EU integration, the concept of GAAR has been developed and elaborated by Court of Justice of European Union as well as secondary laws, but there are quite a few different formulations. In the existing literature, it is established that, there are the subject test and the objective test cumulatively in the GAAR, which examines the taxpayers’ subjective intension and the objective economic reality. As to the relation between these two tests, scholars have established the theory that, the formulation and the context of the subjective test is actually influenced by the tax rule involved (that is, the purpose of the norm being circumvented). This paper will revisit GAARs in the EU tax law and present that, the theory of GAAR based on the purpose of the violated tax norm is indeed supported by latest case law of CJEU as well new Directives. Furthermore, the intention of the norm reconciles the subject test and the objective test. In this regard, the unpredictability of ‘GAAR’ actually has become more predictable.

Keywords

General Anti-Avoidance Rule (GAAR); EU law; Abuse of Law; Common Consolidated Corporate Tax Base (CCCTB); Anti-Tax Avoidance Directive (ATAD); legal certainty
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Chen, Shu-Chien, Predicting the ‘Unpredictable’ General Anti-Avoidance Rule (GAAR) in EU Tax Law (June 20, 2018). InterEULawEast : journal for the international and european law, economics and market integrations. Available at SSRN: https://ssrn.com/abstract=3210833

https://hrcak.srce.hr/203327

https://repub.eur.nl/pub/109165

https://doi.org/10.22598/iele.2018.5.1.5

http://taxprof.typepad.com/taxprof_blog/2018/08/weekly-ssrn-tax-article-review-and-roundup-kleiman-reviews-weisbords-postmortem-austerity-and-entitl.html

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China-Europe Commercial Collaboration Association (CECCA) Newsletter has re-published this paper with the permission. CECCA is a non-profit organisation, aiming to promote communication between trade and shipping, between academics and professionals, and more importantly between Europe and China. I am glad that editors and colleagues from other fields of law are interested in this piece.

The newsletter can be downloaded here.

https://ceccalondon.wordpress.com/2018/09/29/cecca-newsletter-released/

https://www.slideshare.net/mobile/AndrMendes103/cecca-newsletter-issue-13-augampsept-fina

https://www.slideshare.net/ShuChienChen/chinaeurope-commercial-collaboration-association-cecca-newsletter-on-company-and-financial-law-augusteseptember-2018