|
Foreword – Malcolm Gammie QC
|
xi |
|
Foreword – Professor Michael Lang
|
xv |
|
Preface
|
xvii |
|
Introduction
|
1 |
|
1 The historical background to EU corporate tax law
|
3 |
|
1.1 Introduction
|
3 |
|
1.2 The historical background
|
9 |
|
1.2.1 The Neumark Report
|
9 |
|
1.2.2 The Segrè Report
|
11 |
|
1.2.3 The Program for the Harmonisation of Direct Taxation
|
13 |
|
1.2.4 The Van den Tempel Report
|
13 |
|
1.2.5 The Commission’s 1975 proposal and its aftermath
|
14 |
|
1.2.6 The Ruding Report
|
18 |
|
1.3 Recent developments
|
21 |
|
1.3.1 Harmful tax competition and the tax package
|
21 |
|
1.3.2 The 2001 Company Tax Study
|
22 |
|
1.3.3 The aftermath to the 2001 Company Tax Study
|
25 |
|
1.3.4 Good governance in tax matters
|
27 |
|
1.4 The future of EU corporate tax law
|
29 |
|
2 EU corporate tax legislation
|
31 |
|
2.1 The Parent–Subsidiary Directive
|
31 |
|
2.1.1 Profit distribution
|
33 |
|
2.1.2 Eligibility requirements
|
36 |
|
2.1.3 Taxing the profit distribution
|
41 |
|
2.1.4 What is a withholding tax?
|
45 |
|
2.2 The Merger Directive
|
50 |
|
2.3 The Interest and Royalties Directive
|
51 |
|
2.3.1 Eligible companies, permanent establishments and beneficial ownership
|
53 |
|
2.3.2 Interest, royalties and excluded payments
|
57 |
|
2.3.3 The taxation of the payer/debtor
|
62 |
|
2.3.4 Reform of the Interest and Royalties Directive
|
64 |
|
2.4 The Savings Directive
|
65 |
|
2.5 The Arbitration Convention
|
70 |
|
2.6 The Code of Conduct on Business Taxation
|
75 |
|
2.7 The Mutual Assistance Directives
|
76 |
|
2.8 The Draft Directive for Cross-Border Loss Relief
|
78 |
|
3 The Common Consolidated Corporate Tax Base
|
81 |
|
3.1 Introduction – unanimity or enhanced cooperation?
|
81 |
|
3.2 Key features of the Draft CCCTB Directive
|
84 |
|
3.2.1 Eligibility and membership tests
|
84 |
|
3.2.2 Optionality: coexistence of domestic regimes and the CCCTB
|
88 |
|
3.2.3 The new tax base
|
90 |
|
3.2.4 Consolidation and other benefits
|
93 |
|
3.2.5 The administration of the CCCTB
|
98 |
|
3.3 Taxation of inbound and outbound payments
|
102 |
|
3.3.1 Inbound payments
|
102 |
|
3.3.2 Outbound payments
|
105 |
|
3.4 Anti-abuse rules
|
108 |
|
3.4.1 The GAAR
|
108 |
|
3.4.2 Controlled foreign companies
|
109 |
|
3.4.3 Thin capitalisation
|
112 |
|
3.5 Formulary apportionment
|
117 |
|
3.6 The future of the CCCTB
|
120 |
|
4 The Court of Justice and the development of EU corporate tax law
|
123 |
|
4.1 Tax litigation in the Court of Justice
|
123 |
|
4.2 Fundamental freedoms, state aid and direct taxation
|
129 |
|
4.2.1 Free movement of goods
|
129 |
|
4.2.2 Free movement of persons
|
129 |
|
4.2.3 Freedom to provide services
|
132 |
|
4.2.4 Free movement of capital
|
135 |
|
4.2.5 Citizenship rights
|
142 |
|
4.2.6 The state aid prohibition
|
144 |
|
4.3 Methodology of the Court of Justice
|
148 |
|
4.3.1 Finding the relevant freedom
|
148 |
|
4.3.2 Discrimination and restriction approach
|
151 |
|
4.3.3 Tax treaties and double taxation
|
157 |
|
4.3.4 Overall or per-country approach?
|
165 |
|
4.4 Conclusion
|
169 |
|
5 Tax obstacles to the cross-border movement of companies: direct investment
|
171 |
|
5.1 Company residence
|
171 |
|
5.2 Issues with the taxation of corporate groups
|
175 |
|
5.2.1 Expenses in foreign holdings
|
177 |
|
5.2.2 Cross-border loss relief
|
182 |
|
5.2.3 Controlled foreign companies
|
196 |
|
5.3 Issues with the taxation of permanent establishments
|
196 |
|
5.3.1 Defining permanent establishments
|
196 |
|
5.3.2 The different treatment of permanent establishments and companies
|
198 |
|
5.3.3 Rules for the attribution of profits and expenses
|
207 |
|
5.3.4 Notional payments and expenses
|
212 |
|
5.3.5 Cross-border loss relief
|
214 |
|
6 Tax obstacles to cross-border portfolio investment
|
229 |
|
6.1 Double taxation relief mechanisms
|
229 |
|
6.2 The taxation of inbound dividends
|
235 |
|
6.2.1 The early cases: individual shareholders
|
237 |
|
6.2.2 Later cases: corporate shareholders
|
238 |
|
6.2.3 Economic and juridical double taxation – the home state perspective
|
249 |
|
6.3 The taxation of outbound dividends
|
252 |
|
6.3.1 The early cases – Fokus Bank, ACT GLO, Denkavit and Amurta
|
252 |
|
6.3.2 Later cases – consolidation of the Court’s principles
|
257 |
|
6.3.3 The relevance of tax treaties – neutralisation of host state taxes?
|
264 |
|
6.3.4 Economic and juridical double taxation – the host state perspective?
|
268 |
|
6.3.5 Taxation on gross basis or net basis?
|
270 |
|
6.3.6 Other developments
|
273 |
|
6.4 The taxation of interest and royalties
|
275 |
|
7 Reorganisations under EU tax law
|
282 |
|
7.1 Corporate reorganisations and the Merger Directive
|
283 |
|
7.1.1 The scope of the Merger Directive
|
284 |
|
7.1.2 Reliefs under the Merger Directive
|
286 |
|
7.1.3 Case law on the Merger Directive
|
290 |
|
7.2 Corporate migration
|
299 |
|
7.2.1 Corporate law restrictions
|
299 |
|
7.2.2 The transfer of tax residence
|
306 |
|
7.2.2.1 Exit taxes
|
307 |
|
7.2.2.2 The case law of the Court of Justice: emigrating individuals v. emigrating companies?
|
310 |
|
7.2.3 The EU’s corporate vehicles
|
326 |
|
7.3 Transfer of assets
|
328 |
|
8 Tax avoidance and EU law
|
333 |
|
8.1 An EU principle of abuse of tax law?
|
333 |
|
8.2 Anti-deferral regimes
|
338 |
|
8.2.1 CFCs in international tax law
|
339 |
|
8.2.2 CFCs in EU tax law
|
342 |
|
8.3 Thin capitalisation
|
349 |
|
8.4 Transfer pricing
|
360 |
|
9 EU corporate tax law: interim conclusions and thoughts
|
365 |
|
Index
|
385 |
