Ligningslovens § 3

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Ligningslovens § 3

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Title: Ligningslovens § 3
En analyse af betydningen af den internationale misbrugsklausul
Author: Funch-Jarlbæk, Stefan
Abstract: On 1 May 2015, Denmark had two new general anti-abuse rules (GAARs) come into effect. One GAAR relates to the abuse of advantages that flow from EU directives and is the implementation of the latest change in the EU Parent/subsidiary directive. The other GAAR relates to the abuse of advantages contained in double tax treaties and is an implementation of the principal purpose test contained in OECD’s BEPS report no. 6. When the two GAARs were introduced, the preparatory works to the law were fairly general and as such did not provide much understanding of the actual applicability of the GAARs. As the interpretation sources have been limited, the closer understandings of the GAARs have eluded many since they were introduced. This is partly due to the fact that the GAARs introduced wording that had never before been used in Danish tax law. The focus of this thesis is to clarify the understanding and interpretation of the two GAARs contained in the Danish Tax Assessment Act, section 3 by analysing the valid sources of interpretation for both GAARs, covering Danish national law, EU law and international law. This thesis finds that in relation to the EU GAAR, this GAAR is to be interpreted in correlation with the anti-abuse doctrine contained in the EU law as interpreted by the EU courts. The thesis then analyses the actual interpretational contributions from the EU law in order to provide a detailed insight into the actual assessments that the GAAR requires. This is especially the case in relation to the interpretation of the concept “valid commercial reasons”. In relation to the double tax treaty GAAR, the OECD BEPS report no. 6 is analysed in order to provide a detailed insight into the actual assessments needed to use the GAAR. Furthermore, this thesis compares the two GAARs and finds them to be compatible in relation to interpretation, but advises against interpreting them in the same way. Finally, this thesis provides some examples of where the GAARs could be used.
URI: http://hdl.handle.net/10417/6250
Date: 2017-06-20
Pages: 62 s.
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