#Revue: FI, 2-2020, Mai 2020
#Typeart: Article dossier
#Date: 15 avr. 2020
#Rubrique, ss-rubrique: Lutte contre la fraude et l’évasion fiscales, Dispositifs de droit commun
#Mots-clés: Abus (Dispositifs anti-), Droit de l’Union européenne, Directive anti-évasion fiscale, ATAD, Clause anti-abus, Pays-Bas, fraus legis, fraus tractatum
#Pays: Pays-Bas
#Num art: 02.6
#Auteur: Ivo¤ KUIPERS
#Qualités: Tax Partner, Atlas Tax Lawyers (Amsterdam)
The Dutch legislator decided not to implement the General Anti-Avoidance Rule (œGAAR”) of the EU Anti-Tax Avoidance Directive (œATAD”) and to rely on the court developed fraus legis doctrine. As there are several discrepancies between the GAAR of ATAD and the concept of fraus legis, question arises whether this is actually sufficient for a proper implementation.
Introduction
1. The Anti-Tax Avoidance Directive (œATAD”) as adopted by the European Council contains anti-abuse measures which Member States of the European Union had to implement in their domestic laws. The ATAD set minimum standards and Member States were free to impose more strict rules. Article 6 of ATAD contains a general anti-avoidance rule (œGAAR”), with the aim to tackle abusive tax practices that have not been dealt with through specifically targeted provisions. Like most of the ATAD measures, the GAAR should have been implemented by the Member States before 1 January 2019...
