Konstlade upplägg och inte genuina arrangemang - En jämförelse av EU-domsolens praxis med moder- och dotterbolagsdirektivets skatteflyktsklausul

Sammanfattning: The European Court of Justice has for several years developed a case law regarding wholly artificial arrangements as a ground for justification to prevent tax avoidance. The last few years, EU has worked to prevent tax avoidance and the Parent- and Subsidiary directive has recently been amended by the introduction of a general anti-abuse rule (GAAR). It is questionable, whether the prerequisite not genuine arrangement has the same meaning as an artificial arrangement. Characteristic for an artificial arrangement is lack of economic reality with a view to avoid tax. To take advantage of a more favourable tax regime with a lower corporate tax rate does not itself constitute tax avoidance. According to the proposal of the amended directive, the general anti-abuse rule refers to counteract aggressive tax planning. Which the commission has specified as taking advantage of technicalities of one or more tax regimes through legal arrangements which however contradict the intent of the law. Characteristic for a not genuine arrangement is that the arrangement is not imposed by valid commercial reasons that reflect economic reality. There are both similarities and differences between the terms artificial arrangement and a not genuine arrangement. An argument for that both terms are equivalent is that the general anti-abuse rule refers to artificial arrangements and to the ECJ:s case law regarding wholly artificial arrangements, but the wording “ artificial arrangement” has been replaced to “not genuine arrangement” in the amended directive, which rather is an argument against equivalence. A key difference is the requirement of commercial reasons. It can only be an artificial arrangement if there is no economic reality, while it is sufficient for a not genuine arrangement that there is no valid commercial reason. The point that the proposal of the amended directive refers to the commission’s recommendation on aggressive tax planning argues that the terms doesn´t counter the same purpose. In the light of the above mentioned, its questionable whether the meaning of the terms are intended to be the same. The case law regarding artificial arrangements are aimed to solely counteract tax avoidance, while the general anti-abuse rule also seeks to counter aggressive tax planning. As the terms, according to my opinion, are not equivalent to each other there is an obvious risk in the application of ECJ:s case law that the comparison will be the same as comparing apples and pears.