F. Alfredo García Prats (auth.), Isabelle Richelle, Wolfgang's Allocating Taxing Powers within the European Union PDF

By F. Alfredo García Prats (auth.), Isabelle Richelle, Wolfgang Schön, Edoardo Traversa (eds.)

The contributions to this quantity attempt to triumph over the conventional technique of the judicature of the ecu court docket of Justice in regards to the software of the elemental freedoms in direct taxation that's mostly equipped on a non-discrimination try. during this quantity, notable authors hide a variety of points of the nationwide and foreign tax order whilst eu legislations meets family taxation. This contains trying out conventional pillars of source of revenue taxation – ability-to-pay, resource and place of dwelling, abuse of legislations, arm’s size general – with recognize to their position within the rising ecu tax order in addition to vast issues of co-existence among assorted tax structures that aren't coated via the non-discrimination process corresponding to mutual acceptance, cross-border loss repayment or avoidance of double taxation.

The overarching objective is to flesh out the level to which a important “allocation of taxing powers” in the ecu Union is on its option to a powerful total framework and to stretch the dialogue “beyond discrimination”.

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The majority of distributive rules contained in tax treaties – with some exceptions contained in the UN Model Convention and some others in treaty practice – retain fiscal jurisdiction in favour of the residence State. Therefore, States maintain discretion to define the composition, characteristics, extent, scope of income taxes, and tax regime and qualification of income obtained by resident taxpayers. States may unilaterally decide whether resident taxpayers are taxed on a worldwide basis or not, and to which extent worldwide basis is assumed, for instance, how foreign source income is treated, whether deferral is allowed or not, and whether certain passive foreign income is subject to tax or not – CFC rules –.

This is required by the principle of symmetry of tax treatment of profits and losses’. The Court in the final decision did not uphold such a statement. With this doubtful configuration, the Advocate General tries to configure the symmetry principle as equivalent to the balanced allocation of taxing rights giving content to such allocation. However, the assumptions taken by the Advocate General cannot be assumed. First, because tax treaties do not clearly establish such a correspondence between profits and losses – at least for the State of source – or between income and expenses.

This kind of argument is contrary to the argumentations used in other previous case law, like in Avoir Fiscal: had the non-resident chosen to set up a subsidiary the non-resident company would not had suffered discriminatory treatment. This argument of the French government was not accepted by the ECJ, considering the national treatment rule requirements. Moreover, Mrs Schempp had the same right to move to Austria than to the Netherlands. In our opinion, Mr. Schempp did not only suffer from disparity but from a German rule that conditioned the free movement of her spouse – whether he is or he was not entitled to treaty protection is a different issue; but that does not allow the Court to rightly consider whether disparity exists or not –.

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