The Common Consolidated Corporate Tax Base (CCCTB) and Third Countries
Edited by Michael Lang, Pasquale Pistone, Josef Schuch, Claus Staringer and Alfred Storck
Chapter 8: The limits to interest deductibility: An ad hoc anti-abuse rule in the proposal for a CCCTB Directive
The proposal for a CCCTB Directive (hereinafter: the CCCTB Directive) marks an important step in the evolution of the short history of European Union secondary law on tax matters, for being the first normative text including a supranational definition of abuse and a GAAR supplemented by two ad hoc anti-abuse clauses, or SAARs. Unlike all other directives, the goal here is not to merely allow EU Member States to apply their anti-abuse clauses, or to counter abuse solely within the specific boundaries of ad hoc provisions, but rather to provide a comprehensive framework within which the benefits of secondary Union law apply to genuine transactions only. This is an important development that will prevent some shortcomings at the interpretative level concerning the boundaries of tolerance of abusive practices and secure a level playing field within the European Union. The chapter mainly focuses on the wording, scope and effects of one of the ad hoc anti-abuse clauses contained in the proposed CCCTB Directive, in other words, Article 81, and its impact on relations with third countries, with a view to detecting the potentially critical points that may arise in the interpretation and application of such a provision. However, some additional remarks are needed for the same purpose in respect of two other provisions included in Chapter XIV (Anti-abuse Rules), namely Article 80 (General anti-abuse rule) and the other SAAR, in other words, Article 82 (Controlled foreign companies). This is particularly important in order to understand the influence of the legal context on the interpretation and application of Article 81.
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