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GAARs and Judicial Anti-Avoidance in Germany, the UK and the EU

Schriftenreihe IStR Band 98

Markus Seiler

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Markus Seiler, GAARs and Judicial Anti-Avoidance in Germany, the UK and the EU (2016), Linde Verlag, 1210 Wien, ISBN: 9783709408155

Beschreibung / Abstract

GAARS: the better insight into a country’s tax system



In a post-BEPS tax world and in times of an ever-increasing need for tax revenue, policy-makers are more willing than ever to tighten or adopt General Anti-Avoidance Rules (GAARs). A GAAR is typically a broad principle-based rule trying to establish the borderline between “abuse” and “use” of a law, thereby addressing the phenomenon that as long as there have been taxes, persons have been trying to reduce their tax bills.

This award-winning book compares the GAARs and judicial anti-avoidance approaches of Germany, the UK and the EU. It gives a deep insight into the predominant legal traditions of the Western World, comprehensively analyses case-law and offers unique perspectives on tax law across jurisdictions. This book reveals that there is no other feature of tax law that provides a better insight into a country’s tax system than its anti-avoidance rules. GAARs and their historical background reveal so much about judicial perspectives on taxation and legal interpretation, citizens’ tax morale, drafters’ inclinations for technical or principled drafting or legislators’ willingness to confront politically sensitive issues. Understanding the role of GAARs ultimately also reveals whether they are a suitable means to counteract tax avoidance effectively.



The Book is awarded the "Wolfgang Gassner-Wissenschaftspreis 2016" and the "Erwin-Wenzl-Preis 2016".

Beschreibung

In a post-BEPS tax world and in times of an ever-increasing need for tax revenue, policy-makers are more willing than ever to tighten or adopt General Anti-Avoidance Rules (GAARs). A GAAR is typically a broad principle-based rule trying to establish the borderline between “abuse” and “use” of a law, thereby addressing the phenomenon that as long as there have been taxes, persons have been trying to reduce their tax bills.This award-winning book compares the GAARs and judicial anti-avoidance approaches of Germany, the UK and the EU. It gives a deep insight into the predominant legal traditions of the Western World, comprehensively analyses case-law and offers unique perspectives on tax law across jurisdictions. This book reveals that there is no other feature of tax law that provides a better insight into a country’s tax system than its anti-avoidance rules. GAARs and their historical background reveal so much about judicial perspectives on taxation and legal interpretation, citizens’ tax morale, drafters’ inclinations for technical or principled drafting or legislators’ willingness to confront politically sensitive issues. Understanding the role of GAARs ultimately also reveals whether they are a suitable means to counteract tax avoidance effectively.The Book is awarded the "Wolfgang Gassner-Wissenschaftspreis 2016" and the "Erwin-Wenzl-Preis 2016".

Inhaltsverzeichnis

  • BEGINN
  • Preface
  • List of abbreviations
  • A. Introduction
  • 1. Background
  • 2. Terminology
  • 3. Scope of the study
  • 4. The comparative approach and the research question
  • 5. Structure of the study
  • B. Judicial anti-avoidance
  • 1. Introduction
  • 2. Judicial anti-avoidance in Germany
  • 3. Judicial anti-avoidance in the UK
  • 4. Judicial anti-avoidance in the EU
  • C. Comparison of the GAARs
  • 1. Introduction
  • 2. The way to the GAARs and identifying common elements
  • 3. Arrangements covered
  • 4. Taxes covered
  • 5. Objective test
  • 6. Subjective tests
  • 7. Legal consequences
  • D. Valuation of the GAARs
  • 1. Introduction
  • 2. Judicial anti-avoidance
  • 3. Statutory anti-avoidance (GAARs)
  • 4. Reasons for introducing and suggesting the GAARs
  • 5. What remains at the end?
  • E. Summary
  • 1. Starting position
  • 2. The courts’ approach
  • 3. The GAARs’ approach
  • 4. Valuation of the GAARs
  • F. Annex
  • G. Bibliography

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