The Accrual Accounting Principle and its Implications for Portuguese Tax Courts Decisions

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Daniel Taborda ◽  
João Sousa
Keyword(s):  
Tax Avoidance ◽  
Case Law ◽  
Tax Law ◽  
Income Transfer ◽  
Legal Decisions ◽  
Taxable Income ◽  
Principle Of Justice ◽  
Legal Arguments ◽  
Accounting Principle ◽  
Flexible Application

AbstractTo the best of our knowledge, this is the first paper focusing on the interpretations issued by different Portuguese courts concerning the application of the accrual principle established in the Corporate Income Tax Code.This paper uses a database of the Portuguese tax courts’ decisions and employs a case law-based research methodology to address the following question: under which circumstances the principle of justice may affect the strict application of the accrual principle? After collecting twenty-four legal decisions related to the application of the accrual principle outlined in tax law, this paper summarises eleven, grouping them according to the different issues under dispute. This analysis also includes the confrontation of the assumptions used by the tax authority and the claims of the taxpayers, identifying and discussing the legal arguments to override the strict application of the accrual principle.The main conclusion is that Portuguese courts may summon the principle of justice in taxation when taxpayers violate the accrual principle, in order to prevent unfair corrections to taxable income performed in tax audits. This paper found that the tax authority typically demands a rigid use of the accrual principle while the taxpayers often argue for a more flexible application. This last perspective has been adopted by the tax courts in certain circumstances, in particular when taxable income transfer was not motivated by tax avoidance.

scholarly journals Legal Pragmatism – A Useful and Adequate Explanatory Model for Danish Adjudication on Tax Avoidance?

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Peter Koerver Schmidt
Keyword(s):  
Supreme Court ◽  
Tax Avoidance ◽  
Case Law ◽  
Explanatory Model ◽  
Tax Law ◽  
Legal Analysis ◽  
Supreme Courts ◽  
Legal Pragmatism ◽  
Difficult Cases

AbstractThe author explores whether legal pragmatism may function as a useful and adequate explanatory model for the case law on tax avoidance unfolding in the Danish Supreme Court. In doing so, the underlying ideas of philosophical and legal pragmatism are initially re-visited while the general interpretational approach of the Danish judiciary is briefly outlined. Subsequently, the general approach to interpretation of Danish tax law is presented and the prevailing opinions on tax avoidance in the Danish doctrine are touched upon. This provide the necessary foundation for the following legal analysis of the Danish Supreme Courts’ case law on tax avoidance. Based on this analysis, it is concluded that legal pragmatism may actually function as a useful and adequate explanatory model for the Danish Supreme Court's case law on tax avoidance. Awareness of this pragmatic inclination may facilitate a better understanding of the Danish Supreme Court's approach in difficult cases on tax avoidance and enhance the possibilities of predicting the outcome of such cases.

scholarly journals Dysfunctionality from the Sovereignty Conflict in the ATAD GAAR

2020 ◽  
Vol 10 (1) ◽  
pp. 97-122
Author(s):  
Kaido Künnapas
Keyword(s):  
Internal Structure ◽  
Tax Avoidance ◽  
Case Law ◽  
Tax Planning ◽  
Tax Law ◽  
Member States ◽  
Economic Reality ◽  
Two Stages ◽  
Domestic Law ◽  
The Eu

Abstract Deriving from the internal structure of Article 6 of the EU Anti-Tax Avoidance Directive, the abuse of tax law is overcome in two stages—elimination and requalification. While the elimination stage (addressing how not to tax) is harmonized by the EU for the purpose of fighting against aggressive tax planning, the requalification stage (addressing how to tax then) remains under the sovereignty of Member States. Applying such a two-level mechanism becomes problematic if there is a mismatch between these two stages so that the harmonized GAAR requires elimination of an arrangement, but the domestic law does not provide an alternative basis for taxation of it. This raises a question of whether Article 6 of the ATAD requires the Member States to impose new taxable objects regardless of the literal interpretation of Article 6(3) which recognizes the full sovereignty of Member States to decide what to tax. By applying interpretation methods used by the CJEU in its case-law—i.e., literal, contextual, teleological and comparative—the author argues that the answer to this question is “no”. This is supported by all the interpretations under the above method, while the dysfunctionality of these two stages could be overcome by treating the economic reality test as an objective test regardless of the notion of “commercial reasons” used in Article 6(2).

scholarly journals Related Party Transactions and Tax Avoidance of Business Groups

2018 ◽  
Vol 10 (10) ◽  
pp. 3571 ◽  
Author(s):  
Sungwon Park
Keyword(s):  
Business Groups ◽  
Tax Avoidance ◽  
Business Group ◽  
Tax Law ◽  
Tax Burden ◽  
Group Level ◽  
Taxable Income ◽  
Related Party Transactions

This study aims to examine if the firms in business groups avoid tax by related party transactions. If other conditions are the same, firms have an incentive to maximize after-tax profits by minimizing tax burden. If the firms are in business groups, they tend to minimize tax at the business group level. It is expected that the level of tax avoidance of both parties of related party transactions will be high if tax is minimized at the business group level as the transactions will be made at a level that can minimize the tax of both the firm that reduces the taxable income through related party transactions and the firm whose taxable income increases. In addition, the effect of being in a Chaebol business group and the effect of the Unfair Related Party Transactions Tax Law on the association with related party transactions and tax avoidance are also examined. According to this study, the firms in business groups avoid tax by related party transactions. It is also found out that tax avoidance by related party transactions is done more aggressively in Chaebol member firms than non-Chaebol firms, while tax avoidance by related party transactions in Chaebol business groups decreases after the implementation of the Unfair Related Party Transactions Tax Law.

scholarly journals The Interpretive Function of the CJEU and the Interrelationship of EU and National Levels of Consumer Protection

2017 ◽  
Vol 9 (2) ◽  
pp. E-180-E-215 ◽  
Author(s):  
Geraint Howells ◽  
Gert Straetmans
Keyword(s):  
Consumer Protection ◽  
Case Law ◽  
National Courts ◽  
European Consumer ◽  
Court Of Justice ◽  
Correct Information ◽  
Unfair Commercial Practices Directive ◽  
High Level ◽  
Flexible Application ◽  
The Eu

Abstract This paper analyses the ways in which the Unfair Contract Terms and Unfair Commercial Practices Directives try to steer a path between imposing a common European standard and allowing national variation. The open wording of the norms and safeguard clauses in both directives allows room for their flexible application. The differentiated role between the Court of Justice, as the interpreter of European law, and the national courts, as the party that applies it, provides a release valve to prevent any direct clashes and allows a subtle way for national perspectives to be reflected. The analysis finds that, irrespective of the underlying level of harmonisation, and with the backing of the European legislator’s intention of ensuring a high level of consumer protection, the CJEU is gradually painting the average European consumer with more realistic features. Here, the case law of the CJEU fulfils a bridging function between the labelling requirements in the Foodstuff Regulation, the transparency requirements in the Unfair Contract Terms Directive and the informed decision requirements in the Unfair Commercial Practices Directive. In these three domains the CJEU recognises that the level of customer attention may be suboptimal, even in the presence of comprehensive and correct information. The CJEU’s approach contributes to more convergence in consumer protection throughout the EU. Yet, in terms of legitimacy, it must be noted that in all cases the CJEU has maintained a clear distinction between interpretation and application. The particular constitutional legal order in which the CJEU operates only allows for a process whereby the contours of a more coherent European consumer protection policy are gradually revealed. In the absence of sufficient legislative guidance at the European and national levels, national courts may be increasingly informed by the case law of the CJEU in an effort to establish clearly desirable common expectations. Those who believe that, in practice, uniformity can be achieved overnight by simply adopting a common maximum norm appear over-optimistic.

scholarly journals Management Of Accrual Components In Response To Corporate Income Tax Rate Changes: Evidence From Korea

2013 ◽  
Vol 29 (5) ◽  
pp. 1421 ◽  
Author(s):  
Won-Wook Choi ◽  
Hyun-Ah Lee
Keyword(s):  
Financial Reporting ◽  
Income Tax ◽  
Tax Avoidance ◽  
Corporate Income Tax ◽  
Tax Rate ◽  
Taxable Income ◽  
Accruals Management ◽  
Accrual Management ◽  
Aggressive Tax Avoidance ◽  
Statutory Tax Rate

Changes in the statutory corporate income tax rate provide firms with an opportunity to reduce their tax burden by shifting their taxable income from higher to lower tax rate years. One negative consequence of shifting taxable income across years is higher variation in book income for financial reporting purposes. Taxable income and book income are closely related in most countries, and, in general, reporting volatile book income across years is not a favorable signal to investors. This study investigates how firms shift taxable income and concurrently mitigate book income fluctuation by managing accrual components separately when the statutory income tax rate changes. Unlike prior studies, we decompose discretionary accruals into two components and examine distinctive patterns of accrual management in Korea, where book-tax conformity is high and aggressive tax avoidance is restricted. We find that firms manage book-tax accruals for taxable income shifting and manage book-only accruals to mitigate book income fluctuation. Furthermore, we find the extent of book-tax and book-only accruals management varies depending on the firms tax and financial reporting costs. The results of this study provide clear and compelling evidence of firms opportunistic accrual management behavior in response to statutory tax rate reduction.

scholarly journals A VINCULAÇÃO DO PRINCÍPIO PROCESSUAL DA NÃO-SURPRESA E A APLICAÇÃO DA LEI DE INTRODUÇÃO ÀS NORMAS DO DIREITO BRASILEIRO – LINDB

Percurso ◽  
2019 ◽  
Vol 3 (30) ◽  
pp. 42
Author(s):  
Frabriccio Petreli TAROSSO
Keyword(s):  
Decision Making ◽  
General Rule ◽  
Case Law ◽  
Public Law ◽  
Tax Law ◽  
The Novel ◽  
Legal Certainty ◽  
Federal Law ◽  
National Tax ◽  
Definition Of

RESUMOO presente artigo pretende aproximar alguns conceitos da novel Lei de Introdução às Normas do Direito Brasileiro – LINDB ao princípio da não-surpresa aplicável ao processo tributário, seja ele Administrativo ou Judicial. A Lei Federal n. 13.655 de 25/04/2018 houve por incluir no Decreto-Lei nº 4.657, de 4 de setembro de 1942 - Lei de Introdução às Normas do Direito Brasileiro - disposições sobre segurança jurídica e eficiência na criação e na aplicação do direito público. Deste modo, muitas dúvidas têm surgido acerca da convivência entre a regra geral de direito tributário, inserta no Art. 144 do Código Tributário Nacional, de que a lei vigente à época dos fatos geradores deve ser levada em conta ao deslinde de uma questão e que a jurisprudência majoritária à época dos mesmos fatos – se modificada – não deve servir de parâmetro para a tomada das decisões. PALAVRAS-CHAVE: Lei de Introdução às Normas do Direito Brasileiro – LINDB; Princípio Processual da não-surpresa.ABSTRACTThe present article intends to approximate some concepts of the novel Law of Introduction to the Norms of Brazilian Law - LINDB to the principle of non-surprise applicable to the tax process, be it Administrative or Judicial. Federal Law n. 13,655 dated 04/25/2018, there was a need to include in Decree-Law No. 4.657, dated September 4, 1942 - Law on Introduction to the Rules of Brazilian Law - provisions on legal certainty and efficiency in the creation and application of public law. In this way, many doubts have arisen about the coexistence between the general rule of tax law, inserted in Article 144 of the National Tax Code, that the law in force at the time of the generating facts must be taken into account in the definition of an issue and that the majority case-law at the time of the same facts - if modified - should not serve as a parameter for decision-making. The study will have as a method the legal and bibliographical research on the subject.KEYWORDS: Law of Introduction to the Norms of Brazilian Law – LINDB; Procedural Principle of Non-Surpris

scholarly journals Permanent establishment as a foreign direct investment in Poland: identification of tax barriers in the context of new tax development

2021 ◽  
Vol 57 (2) ◽  
pp. 177-193
Author(s):  
Marcin Jamroży ◽  
Magdalena Janiszewska
Keyword(s):  
Foreign Direct Investment ◽  
Economic Activity ◽  
Direct Investment ◽  
Business Models ◽  
Tax Avoidance ◽  
Tax Law ◽  
Profit Shifting ◽  
New Developments ◽  
Permanent Establishment ◽  
International Tax

Abstract The paper aims to identify the significant tax barriers to foreign direct investment (FDI) in Poland, in particular in the form of a permanent establishment (PE), in the context of new developments in international tax law. Due to the recommendations of the Base Erosion and Profit Shifting (BEPS) project, launched by Organisation for Economic Co-operation and Development (OECD) to prevent international tax avoidance, the understanding of PE has changed, which could lead to changes in business models. The purpose of the research is also to identify the significant tax barriers to economic activity in Poland, in particular in the form of PE, against the international tax law context. The study conducted by the authors relies on the most current tax rulings and judgments of administrative courts issued between 2017 and 2020. It is concluded that not so much the effective tax burdens but the regulatory ambiguity surrounding the tax obligations may contribute to the reduction of Poland's attractiveness as a location for FDI.

境外資金匯回管理運用及課稅條例適用爭議問題研究

2020 ◽  
Vol 20 (20) ◽  
pp. 160-199
Author(s):  
封昌宏 封昌宏
Keyword(s):  
Information Exchange ◽  
Tax Avoidance ◽  
Financial Information ◽  
The Other ◽  
Controversial Issues ◽  
Taxable Income ◽  
Long Period ◽  
Taiwanese People ◽  
Ministry Of Finance ◽  
Trade War

受到國際反避稅、稅務金融資訊交換、國際反洗錢及中美貿易戰等因素的影響，臺灣的稅務居民已意識到，資金停留在境外不是最安全的地方，許多人想將境外的資金匯回。但要匯回資金首先要面對課稅的問題，因為這些多年來在境外所累積的資金，很可能涉及有應課稅的所得。為了迎接這波的資金匯回，財政部提出了一部專為資金匯回制定的法律，解除資金匯回的課稅疑慮。但財政部在執行面卻又顯得保守，造成申請人以扭曲的行為來適用的這部專法，造成更多的爭議問題。本文就這些爭議問題，提出評析。Under the influence of international anti-tax avoidance, tax financial information exchange, international anti-money laundering and Sino-US trade war, Taiwan’s tax residents have realized that it is not relative safer to park their funds abroad and therefore, many Taiwanese people desire to repatriate overseas funds back to Taiwan. However, we need to face the first issue of taxation of possible taxable income accumulated abroad for a long period. In order to encourage the wave of repatriated offshore funds, the Ministry of Finance has specifically proposed a law to relieve the taxation doubts on repatriated funds. In the other hand, the Ministry of Finance has imposed a conservative manner on implementation, leading to applicants’ distorted behavior to apply for this law, which evokes more controversial issues. This article presents an analysis of these controversial issues.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

Ehrenamt und Arbeitnehmerbegriff

2021 ◽  
Author(s):  
Laura Dürschmied
Keyword(s):  
Labor Law ◽  
Case Law ◽  
Tax Law ◽  
Fundamental Analysis

The volunteer is not defined by law. Labor law provisions are not intended to apply to them. However, volunteers may have characteristics that are typically found in employees, e.g. they may be strongly involved in the activity in terms of time and hierarchy. How is the employee to be distinguished from the volunteer? The problem also arises in social and tax law. Can the principles that apply in these areas of law be transferred to labor law? The author develops her solution through a fundamental analysis of the terms and their relationship to each other in the respective areas of law and of the extensive case law on this subject.

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