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THE PATH TO A UNANIMOUSLY ACCEPTED GAAR BY EU MEMBER STATES

Ana-Maria Geamanu

Internal Auditing and Risk Management, 2016, vol. 41, issue 1, 49-61

Abstract: The purpose of this paper is to identify at the level of the EU Member States the basis for acceptance, respectively rejection of the General Anti-Abuse Rule (GAAR), as described in the Commission Recommendation of 6.12.2012 on aggressive tax planning. The different positions adopted by the EU Member States in respect of the initiative to uniform and unify tax legislations in order to fight tax avoidance are analyzed based on their tax laws’ adherence to different doctrines. The results show that the majority of EU Member States presents opposition towards the adoption of the new GAAR, regardless of the doctrines they have in place, and even in the absence of a domestic GAAR. Member States’ position towards the EU GAAR can be divided into three categories: Member States that committed to implement the GAAR in the form recommended by the Commission; Member States that still consider this implementation and Member States that reject the new form of the GAAR, as they claim that the one already existing in their legislation satisfies its purpose. This paper considers the coordinated efforts and the latest development in counteracting aggressive tax planning activities at the level of the EU Member States, through the proposed and at the same time much debated General Anti-Abuse Rule (GAAR). The originality of this research resides in mapping an analysis on a country-by-country basis at the level of the EU Member States that presents the main principles based on which the national General Anti-Abuse Rules are constructed, as compared to the doctrine based on which the proposed EU GAAR is constructed.

Keywords: EU Member State; General Anti-Abuse Rule (GAAR); Aggressive Tax Planning; Substance over form principle; Abuse of law doctrine. (search for similar items in EconPapers)
Date: 2016
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