Applicability of domestic anti-avoidance legislation in relation to tax treaty commitments - A case study placing Swedish law in an international doctrinal framework

Abstract: The present paper is an analysis of Swedish law, as expressed obiter dictum in the Supreme Administrative Court decision of HFD 2012 ref. 20, regarding applicability of Swedish general anti avoidance rules in relation to tax treaty commitments. The purpose of the paper is to put Swedish law, as envisaged by HFD 2012 ref. 20, into an international perspective by drawing internationally relevant conclusions on advantages and disadvantages in the Court’s standpoint by reference to supportive as well as opposing pieces of argumentation derived from international doctrinal debate. Three main concerns a propos the Swedish Court’s standpoint form the point of departure for analysis, touching upon issues of applying domestic law without direct authorization in treaties, requisites for treaty abuse and requirements posed by international customary law. These aspects form the basis onto which doctrinal opinions are applied as templates for support and contradictions to appear. Thus, in drawing conclusions on advantages and disadvantages in the Court’s standpoint, international doctrine serve as important parameters.