Is the anti-tax avoidance directive´s (ATAD´S) general anti-abuse rule (GAAR) in line with the ECJ case law?

• Autor(a) principal: Barreto, Isabella Coelho Paes
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: eng
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10400.14/29340
• topic: ATAD's; GAAR; Domínio/Área Científica::Ciências Sociais::Direito

A new general anti-abuse rule (GAAR) has been adopted as part of the Anti-Tax Avoidance Directive of 12 July 2016 (ATAD), and will likely have worldwide implications regarding the way companies operate and structure their businesses. This dissertation intends to expose and develop the relationship between this new GAARs’ treatment of abuse and the one forged by the European Court of Justice throughout the years. Throughout this endeavor several questions are raised about abuse, its prevention, the methods used and their efficiency. Thus, first this study sets out to highlight the difficulties of interpreting the concept of abuse of (tax) law, as well as the doctrine that was built around it throughout the years. Subsequently it exposes the role of abuse (and measures taken to prevent it) within the European Union legal order, as well as those based on the jurisprudence of the European Court of Justice – further detailing the onus regarding the burden of proof. Finally, part III establishes a recent trend towards mandatory GAAR codification by exposing the traditional approach taken up until this point, as well as a critical analysis of the scope, requirements and legal consequences related to the ATAD’s GAAR.