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DURAČINSKÁ, M. – DURAČINSKÁ, J.:
General Anti-Abuse Rule in the Field of Income Tax and Judgments of the Court of
Justice of the European Union.
Právny obzor, 100, 2017, č. 5,
s. 476 – 512.
Abstract. General
Anti-Abuse Rule in the Field of Income Tax and Judgments of the Court of Justice
of the European Union. The authors focus is to analyze the judgments of the
Court of Justice of the Europeam Union in relation to the doctrine of tax abuse
and to sumarize, in historical perspective, how this institute of tax law became
constituted through the Court of Justice judgments and the Commission materials,
resulting in the General Anti-Abuse Rule/GAAR adopted by Council Directive (EU)
2016/1164 (the “Directive“) laying down rules against tax avoidance practices
that directly affect the functioning of the internal market. Analyzing the GAAR,
the authors refer to the subjective and objective elements of tax abuse, as
specified in the Directive, that require verification by the main purpose test,
not geniune (artificiality)/economic reality test and the test of conflict
between tax advantage and the object and purpose of the tax law. A more detailed
analysis of the question of artificiality is provided in the article as the
Directive has not borrowed the term “wholly artificial arrangement” from the EU
Court of Justice judgments but introduced a definition of artificiality
according to which the transactions, “the arrangement or a series of
arrangements, are not genuine”, assuming such findings must be supported by the
relevant facts and circumstances. In addition, the authors also focus on
anti-abuse legislation in the Slovak Republic, Act 563/2009 Z. z. on tax
administration (Tax Rules), as amended, comparing it to the rules included in
the Directive as regards the subjective and objective elements of abuse and
pointing out to incompleteness of the national legislation especially in
relation to not genuine (artificiality) test and conflict with object and
purpose test.
Key words: general
anti-abuse rule, tax avoidance, tax advantage, subjektive elements, objektive
elements, purpose, arrangement, not genuine, artificiality
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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