The general anti-abuse rule of the Anti-Tax Avoidance Directive: how compliant is the Dutch fraus legis?

The general anti-abuse rule of the Anti-Tax Avoidance Directive: how compliant is the Dutch fraus legis?

The general anti-abuse rule of the Anti-Tax Avoidance Directive: how compliant is the Dutch fraus legis?

Vol. 3, no. 1, pages 21-34
Author:
Abigail Kennedy
University College Utrecht

Abstract

The European general anti-abuse rule of the Anti-Tax Avoidance Directive has not seen specific implementation in the Netherlands, because the existing general anti-abuse rule of fraus legis would be sufficiently compliant. In this article I show that Dutch courts will still have to make some adjustments to their application of fraus legis. The Anti-Tax Avoidance Directive’s artificiality test requires more individual attention in establishing abuse, and the existing Dutch substance requirements should be fine-tuned and extended. Additionally, courts may have to broaden the motive test of fraus legis, and/or adjust the burden of proof of fraus legis.

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