O conceito de razões económicas válidas na operação de fusão : uma análise à decisão jurisprudencial no caso Foggia

• Autor(a) principal: Vasconcelos, Pedro Coutinho
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10400.14/30818
• topic: Tax neutrality; Valid commercial; Reasons; Neutralidade fiscal; Razões económicas válidas; Fusão; Domínio/Área Científica::Ciências Sociais::Direito

Corporate reorganizations, such as mergers, are becoming increasingly important in the market planning, along with the challenges inherent of a growing community market. These reorganizations, could trigger such a burden of tax costs, that causes companies to be inhibited from optimizing their structure highlighting the fact that the home state will not benefit from it, because it will not collect any revenue. One way to step over this negative effect is the tax neutrality special regime, RNF henceforth. This regime has a specific-sectorial clause which in order to be able to be applied it must fulfill certain criteria. One of them, is the absence in the operation of valid commercial reasons. However, it is these valid commercial reasons (which we propose to analyze with the understanding of what will be the abuse of law and the regime of tax neutrality) that form a legal uncertainty given to its indeterminate conception that may create disparate interpretations, among others, between internal courts and CJEU decisions, and even within this one. In this paper, it will be analyzed; in a first chapter, the application of the general principle of abuse of rights in both EU and national tax context, and compare it with anti-abuse rule of the Mergers Directive. I will focus on the problem of the undetermined concept of valid commercial reasons. In a second chapter, a critical analysis will be made of the meaning and scope of the concept on a jurisprudence level, where it will be highlighted some essential points of the different decisions of the CJEU. At the heart of the work, will be the analysis of the Foggia case, where we will raise some unanswered questions or questions raised by course of the CJEU decisions, which in some cases will have a degree of relevance, incurrence and disharmony. In the last chapter some brief conclusions will be drawn from the problem we set out to analyze.