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VŠEOBECNÉ PRAVIDLO PROTI ZNEUŽÍVANIU V OBLASTI DANE Z PRÍJMOV A ROZHODNUTIA SÚDNEHO DVORA EURÓPSKEJ ÚNIE

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Duračinská M., Duračinská J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2017
|
vol. 100
|
issue 5
476 – 494
EN
The authors analyse the judgments of the Court of Justice of the European Union in relation to the doctrine of tax abuse and summarise, 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. Analysing 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 genuine (artificiality)/economic reality test and the test of conflict between tax advantages 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.
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