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Robert Danon, Daniel Gutmann, Margriet Lukkien, Guglielmo Maisto, Adolfo Martín Jiménez, Benjamin Malek
Intertax
Volume 49, Issue 6/7 (2021) pp. 482 – 516
https://doi.org/10.54648/taxi2021050
Abstract
Since they were delivered in February 2019 the judgments of the Court of Justice of the European Union (ECJ) in the well-known ‘Danish cases’ have already been referred to by several courts of EU Member States to tackle alleged cases of directive shopping. In light of the increased convergence between EU and current OECD standards (notably the Principal Purpose Test), the findings of the ECJ will likely also have an impact in tax treaty practice and with respect to corporate structures involving dividends, interest or royalties. Against this background, this article discusses the findings of the ECJ in light of EU law but also contrasts these findings with tax treaty law and practice, including the rules of the Vienna Convention on the Law of Treaties (VCLT). Following an analysis of the prohibition of abuse of rights under EU and tax treaty law, the authors test the indicators of abuse in concrete cases by distinguishing inter alia between wholly artificial (sham) arrangements, on the one hand and ‘real’ business structures driven by tax motives, on the other hand. Finally, the impact of the ECJ findings on the interpretation of beneficial ownership is considered by taking into account recent tax treaty case law involving the 2014 OECD Commentary.
Keywords
Abuse of rights, directive shopping, tax treaty abuse, principal purpose test (PPT), general anti-avoidance rule (GAAR), artificial arrangement, conduit company, beneficial ownership
Extract
This article studies foreseeable effects that a relatively comprehensive implementation of the Pillar 2 GloBE international effective minimum tax would have on international tax competition for investment. The discussion focuses on the perspective of countries that seek to attract foreign direct investment through their tax system. The paper shows that there was disagreement within the G20/OECD Inclusive Framework (IF) about the objective to curb international tax competition through a minimum tax. The reservations of some member countries have manifested themselves in the compromise design of the internationally agreed GloBE regime: With the carve-out for substance-based routine profits (the so-called SBIE), the IF abandoned the idea of setting a general floor for business tax competition at the agreed minimum rate. Instead, the SBIE establishes an effective 15 % floor only for the taxation of excess profits. Due to the additional possibility for source countries to collect any eventual minimum tax themselves through a qualified domestic minimum top-up tax (QDMTT), tax competition could theoretically continue unabated above this floor, implying the successive substitution of traditional business taxation with a domestic minimum tax mimicking the international GloBE top-up tax. Taking into account fiscal, legal, and political constraints, however, such an extreme scenario is unlikely to materialize. A broad GloBE implementation should therefore reduce incentives to use effective tax rate below 15 % (on overall profit) in order to attract high-margin investment. This notwithstanding, certain features of the GloBE Model Rules imply that some forms of business tax competition will continue as before or even gain in relative attractiveness. Due to its – albeit moderate – mitigating effects on business tax competition, GloBE might moreover lead to intensified competition for investment through other channels.