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The Impact of Tax Treaties and EU Law on Group Taxation Regimes by DA SILVA

The Impact of Tax Treaties and EU Law on Group Taxation Regimes

By Bruno Da Silva


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EUCOTAX Series on European Taxation Volume 49

Should the income of a corporate group be taxed differently solely because the traditional structure of the income tax system considers each company individually? Taxation affects business decisions, including location, the form in which business is carried out, and the efficient allocation of company resources. Disparities – differences arising from the interaction of different tax systems – and obstacles – distortions created by domestic legislation arising from differences between domestic and cross-border situations – both become more acute when a business chooses to set up or acquire other companies, thus forming a group, usually operating in multiple jurisdictions. Responding to such ever more common developments, this book is the first in-depth analysis of how tax treaties and EU law influence group taxation regimes.

Among the issues and topics covered are the following:

  • analysis of the different tax group regimes adopted by different countries;
  • advantages and disadvantages of a variety of models;
  • application of the non-discrimination provision of Article 24 of the OECD Model Tax Convention to group taxation regimes;
  • application of the fundamental freedoms of the TFEU to group taxation regimes following the three-step approach adopted by the EU Court of Justice;
  • uncertainty raised by the landmark Marks & Spencer case, its interpretation and consequences to other group taxations regimes;   
  • interrelations between tax treaties and EU Law in the context of tax groups; and
  • per-element approach.

The analysis considers concrete examples as well as relevant case law.

With its analysis of the standards required by the two sets of norms (tax treaties and EU law) and their interaction, particularly in terms of non-discrimination, this book sheds clear light on ways to overcome the disparities and obstacles inherent in group taxation regimes. As a thorough survey of the extent to which the interpretation of tax treaties and EU law affect group taxation regimes, this book has no peers. All taxation professionals, whether working in EU Member States or in EU trading partners, will appreciate its invaluable insights and guidance.


Pages 648
Last Updated 08/26/2016
Update Frequency As Needed
Product Line Kluwer Law International
ISBN 9789041169051
SKU 10059184-0001
Table of Contents

List of Abbreviations


Part I Introduction

Chapter 1 Overview

Part II Relevance and Characterization of Tax Groups

Chapter 2 Definition of Groups

Chapter 3 Income Taxation of Corporate Groups

Chapter 4 Reasons for the Existence of Group Taxation Regimes

Chapter 5 Relevance of Group Taxation Regimes and ‘the Global Market’

Chapter 6 Characterization and Requirements to Form a Tax Group

Part III Group Taxation and Tax Treaties

Chapter 7 Tax Treaty Provisions and Group Taxation

Chapter 8 The Non-discrimination Provision: Analysis of Article 24 of the OECD MTC

Chapter 9 Non-discrimination in Tax Treaties and Cross-Border Group Taxation

Chapter 10 Alternative or Combined Application of Non-discrimination Provisions and Tax Groups

Chapter 11 Tax Treaties and EU Law

Part IV Group Taxation and EU Law

Chapter 12 Group Taxation and EU Secondary Law

Chapter 13 General Considerations on the Interpretation of the Fundamental Freedoms

Chapter 14 The Relevant CJ Case Law regarding Group Taxation

Chapter 15 Comparability and the Existence of Discrimination

Chapter 16 The Justifications

Chapter 17 The Proportionality Test

Chapter 18 Per-Element Approach and Per-Element Analysis

Chapter 19Per-Element Analysis: Testing Specific Elements of Group Taxation Regimes against the Freedom of Establishment

Chapter 20 Other (Possible) Situations Involving Discriminatory Treatment of Tax Groups

Part V Conclusions

Chapter 21 Conclusions


Appendix I Summary Chart of Domestic Group Taxation Regimes

Appendix II Summary Chart of Cross-Border Group Taxation Regimes


Table of Cases