Allocating Taxing Powers within the European Union by F. Alfredo García Prats (auth.), Isabelle Richelle, Wolfgang PDF

By F. Alfredo García Prats (auth.), Isabelle Richelle, Wolfgang Schön, Edoardo Traversa (eds.)

ISBN-10: 3642349188

ISBN-13: 9783642349188

ISBN-10: 3642349196

ISBN-13: 9783642349195

The contributions to this quantity try and conquer the normal strategy of the judicature of the eu court docket of Justice in regards to the software of the elemental freedoms in direct taxation that's mostly equipped on a non-discrimination try out. during this quantity, amazing authors hide a number of points of the nationwide and overseas tax order while ecu legislation meets family taxation. This comprises checking out conventional pillars of source of revenue taxation – ability-to-pay, resource and place of abode, abuse of legislations, arm’s size regular – with appreciate to their position within the rising ecu tax order in addition to significant concerns of co-existence among diverse tax platforms that aren't coated by means of the non-discrimination technique similar to mutual attractiveness, cross-border loss repayment or avoidance of double taxation.

The overarching target is to flesh out the level to which a noticeable “allocation of taxing powers” in the ecu Union is on its method to a powerful total framework and to stretch the dialogue “beyond discrimination”.

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The problem then consists on finding a proper comparability framework analysis for that broader comparability analysis of income tax rules than the outcome resulting for a pure and simple economic driven analysis. At the end, what is to be decided is whether or not the parameters and assumptions used in cross-border tax matters can be integrated with EU Law requirements and, if not, what type of amendments need to be made. Since nationality is not generally used as a criterion for distinctive tax treatment on income tax matters – or at least it has a very limited scope and application –, it has to be decided whether the same material criteria of comparability is applied in these situations.

As regards the rules to be considered, the ECJ seems to confirm a sort of mutual recognition rule, by which the State of activity cannot take into consideration income of one of the spouses which is not considered taxable by the Member State of residence of the spouse, otherwise there is an infringement of the fundamental freedom (Meindl, C-329/05). Or in a similar approach, the State of activity cannot refuse to grant the basic allowance to a non-resident (German student) who obtained exempted income in the residence State, whose only taxable income had been earned in Sweden (Wallentin, C-169/03).

The ECJ held that the restriction at issue was justified, regardless of the fact that Krankenheim disposed of its permanent establishment and incurred final losses in Austria. In my opinion, the ECJ reasoned in a wrong manner, since there is lack of discrimination between foreign and domestic permanent establishments. Domestic permanent establishment losses are also recaptured when compensated. Moreover, it could be considered that it was the permanent establishment State, Austria, granting a discriminatory treatment and not the residence State, as the court declared (51).

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Allocating Taxing Powers within the European Union by F. Alfredo García Prats (auth.), Isabelle Richelle, Wolfgang Schön, Edoardo Traversa (eds.)


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