Suchergebnisse

One of the greatest challenges modern states are faced with is finding a way to tackle unacceptable tax avoidance, especially aggressive tax planning schemes and the use of the so-called tax heavens. In this process, many states adopt a general anti-avoidance rule that allows for tax administration to deny tax benefits realized through the use of abusive tax arrangements, which are in accordance with the letters of the law but circumvent its purpose. At the EU level, Article 6 of the Directive 2016/1164 (Anti-Tax-Avoidance Directive, ATAD), laying down rules against tax avoidance practices that directly affect the functioning of the internal market, contains the general anti-avoidance rule (GAAR). This paper aims to analyze the ATAD's GAAR and related case law of the European Court of Justice in tax avoidance cases in the context of abuse of EU law. In the first section, the author defines tax avoidance and tax evasion in order to clearly distinguish the two terms, and explains the need for the GAAR. The second part presents the elements of the GAAR and the consequences of its application. The third section addresses the issue of legal certainty in applying the GAAR. As one of the prerequisites for tackling the unacceptable tax avoidance and aggressive tax planning is enhanced cooperation of tax administrations and greater transparency of tax information, the author analyzes the 2011 Directive on administrative cooperation in tax matters (DAC) and its numerous amendments. Finally, we present perspectives on the harmonization of direct taxes and depict a potential global solution to reform the outdated international corporate tax system, with action on the reallocation of taxing rights and minimum effective taxation.

The separation of company assets from the assets of its shareholders and the limited liability of company shareholders are two fundamental principles of company law. The principle of limited liability places a "corporate veil" betweeen the company and its shareholders, protecting them from personal responsibility for corporate obligations. It also enables investors to limit their exposure to potential loss to their actual investment in company and to shift the risk of corporate insolvency to the business's creditors. By creating incentives for business ventures, the"corporate veil" of limited liability principle is beneficial to corporate shareholders and the society in general. However, it also opens the door for different kinds of abuses, one of which is embodied in the emergence of "phoenix" companies. A "phoenix" company is usually defined as a new company that arises from the ashes of its failed predcessor, taking over its assets and continuing its business, usually under the same or similar name, and with the same (de facto or de iure) controllers. The phenomenon of "phoenixism" encompasses a range of activities, some of which are legitimate and lawful means of saving the business in financial distress, while others are illegal and constitute an abuse of the corporate limited liability form and the abuse of insolvency and tax law; there are also different shades of grey inbetween the two. The aim of this paper is to describe the conceptual framework of "phoenix" companies, present the main indicators for detecting their activities, and categorise the various types of phoenix activity, with the aim of distinguishing between the harmful and beneficial "phoenixing".