Den europeiska skattjakten - Tolkning och tillämpning av europeiska dubbelbeskattningsavtal i ljuset av MLI:s PPT och ATAD

Sammanfattning: The international tax law system has for a long time been defined by its prevention of double taxation of the taxpayers. The main way in which this work has been undertaken has been the many bilateral tax agreements that exist between states today. These agreements regulate the taxation rights between two states in a case of a cross-border transaction or arrangement. In that way it is possible for the states to avoid double taxation, that is, that both states tax the same transaction. Lately, the problem of double non-taxation, i.e. a cross-border transaction that for some reason isn’t taxed at all, in any state, has been given a greater focus in the international cooperation regarding tax law. Double non-taxation is regarded as having a negative impact on a states economy, and, by extension, the global economy as a whole. Because of this, the focus of many tax agreements has shifted from having the singular purpose of preventing double taxation to preventing double non-taxation as well as double taxation. In an attempt to prevent, among other things, double non-taxation the OECD initiated the BEPS-project with the goal of lowering tax base erosion and profit shifting. The result of this project is the Multilateral Instrument, the MLI, which aims to revise existing tax agreements in a way that will give individual states greater possibilities to tax cross-border transaction that would otherwise not be taxed at all. One of the biggest changes that the MLI will bring is the inclusion into all by the MLI covered agreements of a Principal Purpose Test (PPT) which will give an individual state the possibility to tax a transaction or arrangement that has been carried out or put in place with one of its principal purposes being getting a substantial tax benefit. At the same time the EU is implementing the ATAD, a directive aimed at preventing tax avoidance within the EU. The ATAD includes a GAAR that works in a similar way to that of the PPT. Through this directive the member states have agreed to give up some of their tax sovereignty in favour of increasing their possibilities to prevent tax avoidance and double non-taxation. This situation raises the question of how the European tax situation will change. The following essay aims to investigate this as well as how the two new regulations will relate to and impact each other. This is done by analysing law and case law as well as reviewing international tax agreement law in general in order to conclude what effects the new regulations will have on the international tax law system. The case law that will be analysed is four Swedish cases, RÅ 2008 ref. 24 (the OMX Case) and RÅ 2010 ref. 112 (the Grekland Case) that deal with the relationship between internal law and tax agreements, and RÅ 1995 ref. 69 (Kenya I) and RÅ 1996 ref. 38 (Kenya II) that deal with the so called “golden rule of tax agreement law”. In addition, a European case, the Cadbury Schweppes case (case C-196/04), is analysed due to its relevance to European tax law. The former two of these cases is later discussed in the light of the MLI with the purpose of determining whether the result of these case would have been different if the MLI had been in force at the time of these cases. The essay reaches the conclusion that the MLI and the ATAD will bring changes to the international tax law system in general and the international tax agreement law in particular. To what extent is hard to say, as the regulations have just recently been entered into force by the time of this essays completion. What can be said however is that the subjectivity of the PPT may lead to a decrease in the predictability for tax payers regarding how their actions will be taxed. At the same time individual states will have greater possibilities to prevent base erosion, profit shifting and double non-taxation. The situation is a tightrope walk where it is up to the relevant authorities to enforce these new regulations in a way that fulfils their goals without taking it to far to the detriment of the taxpayer.