Google+ dirittotributario.eu: Avoidance, evasion and abus de droit: an (also linguistical) issue under EU tax law.

venerdì 23 novembre 2007

Avoidance, evasion and abus de droit: an (also linguistical) issue under EU tax law.

Sto facendo pulizia sul mio HD, qui sotto allego allora l'abstract (prima bozza) che ho presentato per il convegno di Sheffield del 2007.


Tax avoidance is perhaps one of the most intriguing and interesting issues in national law all cross Europe: it is an problem many countries are dealing with in different ways, depending on their traditions and their general legal system.
All these answers and national anti-avoidance provisions would have been passed unnoticed by foreign researchers (unless also involved in comparative studies) if the EU legal system would not have forced many of the former to converge and urged common answers to common problems.
Many influent scholars already pointed out that a linguistic problem comes before the legal one: For instance the notion of abuso di diritto (in Italian) abuse de droit (in French) doesn’t have the same meaning of “abuse of law” in English (which doesn’t have any, probably). In the same way, the translation in English of terms such as “evasione” or “elusione” (and the similar ones in many other continental languages) is not properly “avoidance” and “evasion”.
These linguistic difficulties are clearly evident in the ECJ case law: the judges in Luxembourg have to deal both with legal and linguistical problems, and in more than one circumstance it’s not easy for the reader of the sentence to understand the legal background of it when his Country is not directly involved.
In cases such as C-425/06, still pending in front of the ECJ, the judges shall be called to decide on a issue related to the “abus de droit” (a sort of mala fides of the taxpayer) in a context that to a certain extent is similar to the C-255/02 (Halifax), but that comes from a completely different jurisdiction.
It is therefore possible to demonstrate that the ECJ decisions on tax avoidance and tax evasions are still clearly (albeit only partially) depending on the way in which the national state interprets the notions of avoidance and evasion.
This paper eventually shall compare the most significant ECJ cases on VAT and direct taxation trying to verify whether the notions of avoidance and evasion might have nowadays an harmonised meaning all across Europe (or not), or if the answers will be different according to the tax of the case (VAT on one side, direct taxes on the other).
Another important aspect to deal with shall be the impact of the ECJ interpretation of the two concepts on national law. It is evident form the reading of many text that in ECJ rulings the reader could find an attempt by the Court to strike a balance between the nationals concepts of evasion and avoidance, sometimes confirming the national interpretations, in some cases imposing to a certain extent new EU definitions (as in Kefalas case did).
What will be the influence of these new notions under braches of tax law which are not, by now, harmonised ? Will the vis expansiva of EU law take over the national anti-avoidance rules?
Even if the latest phrase still constitutes “a bridge too far” in legal reasoning, the overall trend in continental interpretation is in that sense and the article shall end on these issues.
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