Wholly Artificial Arrangements Under ATAD and EU Case Law.
Abstract: Since the coming into force of the EU Anti-Tax Avoidance Directive (ATAD), there has been a lot of questions as to the meaning of the concept of wholly artificial arrangements and how member states can enact legislation to combat abuse of rights and other fraudulent practices within the European Union. However, the concept of wholly artificial arrangements as enacted in articles 6 & 7 of the ATAD is not new. It’s a concept that has been well developed within the case law of the Court of Justice of the European Union and hence, the judgments and opinions of the Court of Justice of the European Union are very important in understanding articles 6 & 7 of ATAD. As demonstrated in this thesis, despite the fact that member states are free to enact measures aimed at combatting abusive practices when it comes to tax matters, however they must do so in a such a way as not to go against EU law or EU basic freedoms. Hence EU law remains supreme. Furthermore, the fact that a taxpayer decides to take advantage of favourable tax rates abroad does not presume an intention to fraud and all cases of abuse of rights must be dealt with on a case-by-case basis. As shall be shown in this thesis, the only instance where the Court of Justice of the European Union will accept restrictive measures in order to combat tax avoidance and tax evasion, is only when it involves the use of wholly artificial arrangements in order to circumvent both EU law and national law. And this must be based on both an objective and a subjective test as shall be seen in the thesis.
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