The Concept of Abuse in Accordance with Section 3 of the Tax Assessment Act

Maria Henriksen

Student thesis: Master thesis

Abstract

One of the main purposes behind the EU is ensuring the common values of the EU and the welfare with the Union. A key mean of achieving this was in the creation of the common internal market with free movement of goods, capital, services, and labor within the Union. As a result, the EU was considered optimal especially for competition purposes and businesses gained a greater mobility and the ability to establish themselves as desired. In order to ensure these goals Member States conferred sovereignty to the EU, however one area where Member States are largely self-regulating is in the area of taxation. As a result, the tax legalization in the Member States are highly differentiated and businesses have seen this as an opportunity to gain from this by conducting in for example tax planning. Tax planning is not necessarily illegal, but the limit can be difficult to deduce. In recent years, EU regulatory changes and initiatives have been launched in order to limit and eliminate misuse and abuse of regulation. One of these is the Anti-Tax Avoidance Directive in which the general anti abuse rule was presented. Further, this was implemented in Danish legalization in section 3 of the Tax Assessment Act. This paper seeks first to investigate what the applicable law is according to the general anti abuse rule in section 3 of the Tax Assessment Act. In addition to this, the paper investigates what difficulties of interpretation the provision rises. Second, the paper seeks to investigate what kind of tax situations welfare is optimized and to what extent of a non-harmonized tax legalization area affects market participants including Member States and the businesses. Third part of the thesis will summarize to what extent the provision complies to the legal policy objectives and considerations, and what other measures there could be able to change the legal situation to an extent where the overall welfare is optimized. This paper will divide the above into a legal, economic and integrated analysis, respectively. The legal analysis concludes the applicable law and the provision leads to more interpretive problems and results in a greater consideration for combating abuse than for the legal certainty of taxpayers. The economic analysis concludes that efficient tax systems arise as a result of full harmonization and that the opposite leads to a regulatory competition between the Member States. The integrated analysis concludes that the provision only to some extent complies with judicial and policy considerations, and finally that the management discipline CSR can lead to increased welfare.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2021
Number of pages81
SupervisorsPeter Koerver Schmidt