Tax Law

Unlike indirect tax, direct tax is less harmonised.1 Individual MS2 may use direct tax as they see fit so long as it does not contravene EU law.3 This is due to the EU principle of supremacy.4
Similarly to Lankhorst,5 section x makes resident subsidiaries subject to different treatment according to whether the shareholder offering loan capital is entitled to corporation-tax credit or not.6 As tax credit is usually given to resident parent companies,7 this differential treatment constitutes a restriction to the freedom of establishment under Article 49 TFEU.8
Such a restriction is a breach of EU law.9 Nevertheless, it may be justified depending on the type of discrimination. The case of NP10 is one of indirect discrimination, as it
1 R. de la Feria and C. Fuest, 'Closer to an Internal Market? The Economic Effects of EU Tax Jurisprudence' [2011] Oxford University Centre for Business Taxation Working Paper 11/12, p.13.
2 Member State(s).
3 C-264/96 ICI [1997] ECR I-4695, para.19. See also HM Government, 'Review of the Balance of Competences between the United Kingdom and the European Union ' Taxation' [2013] available at < tion_acc.pdf> accessed 15.04.2014, p.19 and Art.4(1) TFEU, which says that the EU has no competence where it is not expressly conferred.
4 Case 6/64 Costa v ENEL [1964] ECR 585. 5 C-324/00 [2002] ECR I-11779.
6 Ibid. para.27.
7 Ibid. para.28.
8 Ibid. para.32. Note that this may also constitute a restriction on the free movement of capital under Article 63 TFEU, however this essay follows the establishment-only approach in Lankhorst.
9 Article 49 TFEU.
'Tax Law Summative II 2
imposes requirements regarding residence.11 This means that the breach may be justified either under Treaty or case law based derogations.12 Treaty based derogations for the freedom are those of 'public policy, security and health'.13 These do not apply in this case. Case law based derogations are those classed as 'overriding reasons of public interests'14 which can justify restrictions of the freedom. One such derogation specifically relates to preventing 'wholly artificial arrangements aimed at circumventing the application of the legislation of the MS'.15 The prevention of tax avoidance may therefore be an appropriate justification for the piece of legislation in this case, provided the latter is applied specifically for that purpose and not generally.16 Alternatively the UK may seek to justify the restriction through a public regulatory function of the state seeking to regulate debt and equity. There is no case law on such a justification. Nevertheless it can be inferred, as high levels of debt may pose threats to different stakeholders.17 However, due to the similarity to Lankhorst this paper focuses solely to the prevention of tax avoidance justification.18
10 Northern Pharmaceuticals.
11 Direct discrimination involves less-favourable treatment based on grounds of nationality or origin as opposed to indirect discrimination, which concerns among other things residence. See C. Barnard, 'Competence Review: the internal market' available at < competence-review-internal-market.pdf> accessed 02.05.2014, pp.7-8. This is also consistent with the approach in Lankhorst(n.5).
12 Ibid. p.8. This is called the 'restriction approach'.
13 Article 52 TFEU.
14 C-196/04 Cadbury-Schweppes [2006] I-07995, para.47.
15 Ibid. para.51; Lankhorst(n.5), para.37; C-446/03 Marks and Spencer [2005] ECR I-10837, para.57; C-524/04 Thin-Cap [2007] I-02107, para.72.
16 ICI(n.3), para.26.
17 A.P. Dourado and R. de la Feria, 'Thin Capitalisation Rules in the Context of the CCCTB' [2008], Oxford University Centre for Business Taxation Working Paper 08/04, pp.18-19.
18 M.J. Graetz and A.C. Warren Jr., 'Income Tax Discrimination and the Political and Economic Integration of Europe' [2006] Yale Law Journal 115, p.1207.
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Before any justification is accepted the measure must also be proportionate in the way it achieves its purported objectives.19 This involves testing the suitability and necessity of the measure.20 The measure is suitable in combatting tax avoidance both theoretically and empirically.21 However, the measure is not necessary as other means may be used to combat avoidance through less onerous effects on the freedom.22 The UK has two alternatives:
1) applying the measure to all companies in the EU in a non-discriminatory fashion (and therefore broadening the scope of the measures to resident companies);
2) applying the measure solely to non-EU companies.
The test of necessity is not therefore satisfied. After Lankhorst most MS applied the measures to all EU companies and therefore this is the most likely outcome here as well.23
19 R. Mason and M.S. Knoll, 'What is tax discrimination'? [2011] Yale Law Journal 121, p.1029.
20 T. Tridimas, 'Abuse of rights in EU Law: Some Reflections with Particular Reference to Financial Law' in R. de la Feria and S. Vogenauer (eds.) Prohibition of Abuse of Law: A New general Principle of EU Law? (Kindle Edition, Hart Publishing 2011), location 2756/21200. Also see Case C-55/94 Gebhard [1995] ECR I-4165, para.37.
21 Dourado & De la Feria(n.17), p.19.
22 Note also that such a case would usually require a consideration of objective and verifiable elements in testing a wholly artificial transaction in order for it to comply with the test of necessity as per Thin- Cap(n.15) para.82. Avoidance would thus be a 'rebuttable presumption' as per L. De Broe, International Tax Planning and Prevention of Abuse (Doctoral Series 14, IBFD 2008), p.914. However, this discussion is unnecessary in this case, as the indirect discrimination is so general and obvious that the necessity test is still not satisfied as per paras.37-38 of Lankhorst(n.5).

23 De la Feria and Fuest(n.1), p.33.
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Section x constitutes a disproportionate breach of EU law. Freedom of establishment is directly effective and can therefore be invoked to disapply section x.24 Once this is done, a legal vacuum occurs and the default thin-capitalisation rule that debt interest is deductible from the taxable base is applied.25 As NP has been applying the rules in section x for at least two years, they should be entitled to reclaim wrongfully paid tax from HMRC under the Francovich principle of state liability.26
In VAT, this would not be possible as the incidence would be on consumers and any reclaim would constitute unjust enrichment.27 In the area of direct taxes unjust enrichment does not apply. This is because even though in practice the direct tax may have well been passed on through employee wages or other means,28 theoretically and legally speaking the payment and incidence of tax are on the same legal person.29 In this case that person is NP.30 In conclusion, HMRC cannot recharacterise the loan repayments and NP is entitled to the unduly paid tax.
Question (b)
The GAAR31 applies to corporation tax and therefore it is relevant to this question.32 In the case of NP, there is a legal vacuum regarding thin-capitalisation rules, as shown
24 C-26/62 Van Gend [1963] ECR 1; Case 33/74 Van Binsbergen [1974] ECR 1229, paras.25-27.
25 OECD, 'Thin Capitalisation Legislation: A Background Paper For Country Tax Administrations' [2012], p.3.
26 C-6/90 [1991] ECR I-05357, para.46.
27 C-309/06 M&S [2008] ECR I-02283, para.54.
28 W. Arulampalam, M.P. Devereux and G. Maffini, 'The Direct Incidence of Corporate Income Tax on Wages' [2008] Oxford University Centre for Business Taxation Working Paper 09/17, p.30.
29 J. Tiley, Revenue Law (7th Ed, Kindle Edition, Hart 2012), location 3392/35236.
30 Salomon [1897] AC 22.
31 General Anti-Abuse Rule.
32 Finance Act 2013, Part 5, s.206(3)(b).
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above. This means hypothetically that the GAAR could apply in this case, due to thin- capitalisation avoidance transactions satisfying the elements in the GAAR test for abuse. This test is similar to the one developed at EU level for abuse of law:33
1) A tax arrangement occurs when having regard to all circumstances it is reasonable to conclude that tax advantage was one on the main purposes of the arrangement.34
2) A tax arrangement is abusive if it cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions, having regard to all circumstances.35
The GAAR has non-retrospective effect in relation to any arrangements that are entered into before the date on which the Finance Bill 2013 is passed into law.36 According to FII,37 national law is precluded from denying repayment of wrongfully levied tax in breach of EU law retroactively due to the principles of legal certainty, protection of legitimate expectations and effectiveness.38
33 The EU abuse test developed in C-110/99 Emsland [2000] ECR I-11569 applies more narrowly when compared to the UK GAAR due to its wording. Compare the wording above 'one of the main purposes' to the EU narrower wording 'principal [purpose]' as per C-255/02 Halifax [2006] ECR I- 01609, para.74. This augments the argument that GAAR should not be applied retroactively below, as its broad interpretation of abuse could reduce legal certainty even further.
34 Finance Act 2013, Part 5, s.207(1).
35 Ibid. s.207(2).
36 HMRC, 'GAAR Guidance' [2013] available at < abc.pdf> accessed 01.05.2014, p.14.
37 Case C-362/12 FII [2013] unreported.
38 Ibid. para.49.
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Legal certainty and legitimate expectations are general principles of the EU.39 Being unconditional and sufficiently precise, they have direct effect.40 This means that the GAAR cannot apply retroactively as it creates obligations and liabilities for NP, breaching the rule of law.41 Moreover, the protection of public finances cannot be used as a justification for applying GAAR retroactively, as this seems to fall under the invalid justification of 'preventing the reduction of tax revenue'.42 In conclusion GAAR may only apply on or after the date when the Finance Act 2013 comes into force, namely the commencement of the tax year 2013/2014.
Question (c)
The solution to this question is to a large extent similar to that in question (a) above. Once again the principle of supremacy applies, with Ireland being allowed to use its direct tax system in any way that does not contravene EU law.
This case is in some aspects similar to Centros,43 therefore Ireland's refusal constitutes a violation of the freedom of establishment and a breach of EU law. As this breach is achieved through a restriction on the freedom that seems not to constitute discrimination, the restriction approach used for indirect discrimination
39 A. Arnull, 'What is a General principle of EU Law'? in De la Feria and Vogenauer(n.20), location 786/21200.
40 Ibid. location 891/21200.
41 Ibid. location 882/21200.
42 Cadbury-Schweppes(n.14), para.49.
43 C-212/97 Centros [1999] ECR I-1459. Note that in Centros the establishment of a branch was refused, whereas here the registration of the head office is refused similar to C-210/06 Cartesio [2008] ECR I-9614. Nevertheless, Centros must be applied, as NP is not trying to maintain itself being subject to UK law while established in Ireland, which was the case in Cartesio.
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above must once again apply, allowing for both Treaty and case law based derogations.44
The relevant derogation in this case is the prevention of abuse of law, which may fall within one of the 'overriding reasons of public interest' justifications.45 Nevertheless, abuse must be objectively analysed.46 A company establishing its registered office in a more favourable MS and doing business in another does not, objectively scrutinised, engage in any abuse.47 This is called 'legitimate circumvention'.48 The test of proportionality is therefore impossible to satisfy, since the element of justification in the Gebhard four-stage test is not satisfied.49 In conclusion, as the freedom is directly effective, it can be used to remove the restriction on NP's establishment in Ireland.
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'44 Question (a).
45 Centros(n.43), para.23.
46 Ibid.
47 Ibid. para.29. The same was confirmed in Cadbury-Schweppes(n.14), paras37-38 and in C-167/01 Inspire-Art [2003] ECR I-10155, para.96.
48 R. de la Feria, 'Prohibition of Abuse of (Community) Law: The Creation of a New General Principle of EC Law through Tax' [2008] 45 CMLR 395, p.403.
49 Gebhard(n.20), paras.37-39. Also note that, as opposed to Centros, the restriction does not have an aim such as that of protecting creditors save for the prevention of wholly artificial transactions. Therefore, as artificiality constitutes the main subject matter of the potential justification and does not exist, the proportionality test cannot be satisfied.
Tax Law Summative II 8
In answering the question, this essay will first define tax competition and convey its existence at EU and international level. It then discusses tax havens and the harmful tax competition they entail. Finally the essay illustrates that whether competition is harmful or not mostly depends on the perspective of the players involved.
Definition and evidence of tax competition:
Tax policies were created in order to regulate public goods according to a country's socio-economical concerns.50 Globalisation removed non-tax barriers and facilitated international trade and investment leading to a matrix connecting individual states on an international scale.51 This resulted in increased awareness of tax competition, which can be defined as the state where countries compete against each other based on their tax efficiency, aiming at offering the best combination of infrastructure and public goods for the lowest tax cost in order to attract economic activity and foreign investment.52 Such competition is influenced by each country's behaviour relative to another, yet it is uncooperative.53 Tax competition may be based on tax rates, other tax benefits such as deducting losses or even non-tax incentives, such as secrecy laws.54
50 OECD, 'Harmful Tax Competition ' An Emerging Global Issue' [1998], p.13.
51 Ibid. p.13.
52 B. Terra and P. Wattel, European Tax Law (5th Edition, Wolters-Kluwer 2008), p.110.
53 M.P. Devereux and S. Loretz, 'What do we know about corporate tax competition'? [2012] Oxford University for Business Taxation Working Paper 12/29, pp.2 & 21-22.
54 M. Keen and K. Konrad, 'The Theory of International Tax Competition and Coordination' [2012] Max Planck Institute for Tax Law and Public Finance Working Paper 2012/06, p.60.

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Where economic integration is involved, it seems that the process of tax competition is most noticeable. The EU is one such example, particularly regarding the CJEU's freedom of establishment decisions in the area of abuse of law.55 The cases of Centros,56 Uberseering,57 Inspire Art58 and Cartesio59 have shown that this freedom is construed broadly and is very hard to abuse.60 This was also confirmed for direct tax in Cadbury Schweppes.61 The result was a boom in companies set up in England doing business abroad as well as a general improvement in the regulatory friendliness for companies in Europe, showing that the regulatory competition has been indeed happening.62 Some even call this race-to-the-bottom Europe's own Delaware-effect.63
While the EU has been mostly concerned with improving the corporate environment through non-tax measures, internationally speaking, corporate tax competition per se
55 W.G. Ringe, 'Sparking Regulatory Competition in European Company Law: The Impact of the Centros Line of Case Law and its Concept of 'Abuse of Law'' in De la Feria and Vogenauer (n.20), location 3681/21200.
56 Centros(n.43).
57 C-208/00 [2002] ECR I-9919.
58 Inspire-Art(n.47).
59 Cartesio(n.43).
60 Ringe(n.55), location 3804/21200. Abuse of law is an exception anyway and must be construed narrowly as per A.G. Poiares Maduro Opinion in Cartesio(n.43), para.29 and R. de la Feria and B. Lockwood, 'Opting for Opting-In? An Evaluation of the European Commission's Proposals for Reforming VAT on Financial Services' [2010] 31(2) Fiscal Studies 171, p.176.
61 Cadbury-Schweppes(n.14).
62 Ringe(n.55), location 3868/21200 and 3931/21200. Note that the boom in English company start-ups has been due to the very efficient domestic company law system as per M. Becht, C. Mayer and H.F. Wagner, 'Where do Firms Incorporate? Deregulation and the Cost of Entry' [2007] ECGI Law Working Paper 70/2006, p.22.
63 C. Kirchner, R.W. Painter and W. Kaal, 'Regulatory Competition in EU Corporate Law After Inspire Art: Unbundling Delaware's Product for Europe' [2004] University of Illinois Law and Economics Working Paper 17.
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'Tax Law Summative II 10
has been evident. For example, OECD member average statutory corporate tax rates have fallen sharply from the 1980s to 2008.64 This is significant as the average fall was due to the vast majority of countries experiencing individual falls in corporate tax rates and not due to a few anomalies experiencing extreme tax rate decreases.65 Also, while more than half of OECD countries had corporate tax rates above 40% in the 1980s, by 2002 there were none.66
Tax havens and harmful tax competition:
As seen above, tax competition does exist, but depending on the point of view and the particular situation, this may be classified as either harmful tax competition or legitimate tax competition.67 The OECD considers that there are essentially two situations where harmful tax competition may occur: either the country involved is a tax haven or it is retaliating against already existing harmful tax competition through the same means.68
A tax haven is a country that attracts mobile investment and capital through the minimisation of tax on the income earned by foreign investors.69 This definition alone is unhelpful in determining how such havens contribute to harmful tax competition, as it implies that tax havens merely compete harder, but through the same means as non-
64 L. Kawano and J. Slemrod, 'The effect of tax rates and tax bases on corporate tax revenues: estimates with new measures of the corporate tax base' [2012] Oxford University Centre for Business Taxation Working Paper 12/12, p.9.
65 Ibid. p.10.
66 Ibid.
67 OECD-1998(n.50), p.15.
68 Ibid. p.19.
69 D. Dharmapala and J.R. Hiner Jr., 'Which Countries Become Tax Havens'? [2009] Journal of Public Economics 93(9/10) 1058, pp.1058-1059.
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''Tax Law Summative II 11
haven countries.70 There is also no precise list of tax havens, with different studies showing different results.71 This is perhaps due to the fact that all harmful key factors must be taken into account in categorising countries as tax havens such as inexistent or nominal taxes, the presence of 'ring-fencing', no effective exchange of information, lack of transparency and no substantial activities.72
In terms of general trends among tax havens, these tend to be affluent countries that are small both in terms of area and population, bearing a high standard of governance.73 Such countries generally have a non-landlocked open economy and a physical proximity to capital exporters.74 Natural resource levels tend to be low.75 Finally, trends point towards British legal origins and a state of dependency as opposed to sovereignty.76
The imprecise tax haven definition therefore is highly dependent on trends and satisfying certain criteria, meaning that harm is a subjective concept, as seen below.77 Nevertheless, there is some harm that is conventionally considered to occur from such trends. Extremely low tax rates may 'steal' investment from other less competitive
70 D. Dharmapala, 'What Problems and Opportunities are Created by Tax Havens'? [2008] University of Illinois College of Law Working Paper, p.3. Tax havens tend to use much lower than average nominal rates or even zero rates. They also compete through non-tax means such as bank secrecy.
71 Compare for example OECD, 'Towards Global Co-operation ' Progress in Identifying and Eliminating Harmful Tax Practices' [2000], p.17 and J.R. Hines Jr. and E.M. Rice 'Fiscal Paradise: Foreign Tax Havens and American Business' [1994] National Bureau of Economic Research Working Paper No. 3477, p.3 & Appendix Table A (Tax Haven Countries).
72 Ibid. (OECD-2000), p.10 and OECD-1998(n.50), pp.23-25. 73 Dharmapala and Hiner(n.69), p.24.
74 Ibid. p.11.
75 Ibid. p.11.
76 Dharmapala(n.70), p.1060. 77 Ibid. p.1061.
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'Tax Law Summative II 12
countries in a prima facie counter-productive manner.78 'Ring-fencing' protects the tax haven from the fiscal disadvantages of its incentive effectively discriminating between domestic and foreign businesses.79 The lack of transparency, low information exchange and artificiality also facilitate evasion and avoidance, augmenting the negative effects of nominal tax as well as raising issues of tax fairness.80 Tax scandals due to this are also very common.81 Another problem is that all these criteria of tax havens are interconnected, creating harmful multiplier effects.
The sliding scale of tax competition:
Despite what was shown above, tax havens do not necessarily promote only harmful tax competition. Even if all tax havens were suddenly removed, other countries would quickly take their place, as competition would intensify at alarming rates.82 Therefore tax havens act as regulators of appropriate competition in non-haven countries precisely because of their deviation from normal tax competition.83 It is true, on the one hand, that significant amounts of money are hiding in tax havens without having been taxed.84 On the other hand, one needs to look at the limited number of persons willing or able to use tax havens. There is a crucial distinction between small companies controlled by one person or few people and large corporations. While individuals may engage in tax evasion, corporations are unlikely to commit such
78 Terra and Wattel(n.52), p.111.
79 OECD-1998(n.50), p.26.
80 Ibid. p.22.
81 Spiegel Online 'Affa??re Liechtenstein: Steuerskandal erfasst Europa und die USA' [2008] Wirtschaft 26.02.2008 available at < europa-und-die-usa-a-538014.html> , accessed 01.05.2014.
82 M. Keen, 'Preferential Regimes Can Make Tax Competition Less Harmful' [2001] National Tax Journal 54(4) 757, p.762.
83 Ibid.
84 Hines and Rice(n.71), p.36.
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illegalities.85 This is because directors have a duty to promote the best interests of the company and its shareholders.86 The same applies for tax avoidance and its great reputational costs.87 This limitation is also further enhanced by the fact that moving capital has its costs and therefore firms must be sufficiently powerful to bear such burdens, which is unlikely for many small companies.88 In addition, TIEAs89 may be used against evasion and avoidance, although this raises the issue of effectiveness of such TIEAs in terms of the parties to such treaties and the effect on repatriation.90 The BEPS91 project may also improve corporate tax avoidance through better information exchange.92
Tax havens may also constitute benefits for the countries from which investment is allegedly 'stolen'. For example tax havens may act as indirect subsidies for corporations, giving them a competitive edge.93 This clearly benefits the tax haven due to the inflow of foreign direct investment that increases its economic growth, reduces its unemployment and indirectly increases its revenues through consumption and personal income taxes. From the non-haven country's perspective, this will increase the profitability of the companies it owns and boost economic growth indirectly from higher returns on investment or re-using profit savings to improve
85 Dharmapala(n.70), p.6.
86 S.172 Companies Act 2006. The risk of criminal liability and reputational costs are too great to justify a gain in profit for any reasonable director.
87 Dharmapala(n.70), pp.6-7.
88 Devereux and Loretz(n.53), p.8.
89 Tax Information Exchange Agreements.
90 K. Bilicka and C. Fuest, 'With Which Countries do Tax Havens Share Information With'? [2012] Oxford University Centre for Business Taxation Working Paper 12/11, pp.29-30.
91 Base Erosion and Profit Shifting.
92 OECD, 'Action Plan on Base Erosion and Profit Shifting' [2013], Action 5 p.18.
93 Terra and Wattel(n.52), p.114.
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branch performance.94 However, this win-win situation may be prohibited under state aid law in the EU.95 Nevertheless, this is unlikely so long as discriminatory measures such as 'ring-fencing' are not used, as that would theoretically mean that any two countries with different tax regimes form a state-aid relationship automatically. This means that the idea of harmfulness is in the eyes of the beholder and is very much subjective.
This subjectivity also raises the issue of fairness from the perspective of tax havens. There is effectively a leeching of investment from less competitive countries, but do tax havens a choice? For example, if a haven does not 'ring-fence' and genuinely offers a low rate without discrimination, a low tax rate may be the only way to achieve economic growth.96 With low population providing consumption and personal income revenue, a limited number of businesses due to lack of natural resources and a historical dependency culture with revenues traditionally shifting towards the sovereign, a tax haven seems almost forced to use its good infrastructure, governance and geographical position in order to keep competitive and ensure economic growth. As tax havens afford to be this tax-efficient through nominal rates, it may be argued that they are positively leading tax competition per se.
94 L. Hancher, T. Ottervanger and P.J. Slot, EU State Aids (4th Edition, Sweet and Maxwell 2012), p.361.
95 Article 107 TFEU and C-107/09 Gibraltar [2011] unreported.
96 H. Vording, 'A Level playing Field for Business Taxation in Europe: Why Country Size Matters' [1999] 39 European Taxation 11, p.410.
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'Tax Law Summative II 15
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'In conclusion, in all aspects of tax competition there are winners and losers, each of them guarding their own interests. Tax havens are not therefore inherently harmful. Although some elements of tax havens, such as 'ring-fencing' or bank secrecy are more problematic than others, there are always benefits to be had either by the tax haven, its competitor states, the EU or some other supranational entity or interested party. This means that tax competition constitutes a wide spectrum or a sliding-scale, with tax havens either occupying one end as leaders in legitimate tax competition or the other as the most notorious harmful tax competition players, depending on the observer's perspective and the elements of harmful tax competition which characterise the specific tax haven.

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