Studi Tributari Europei

La limitazione alla deducibilità degl’interessi passivi: considerazioni sul dibattito in Germania

Enrico Altieri — 2022-09-21

The limitation of the deductibility of interest in the calculation of personal and corporate income tax unites the tax choices in Italy and Germany. In Germany, however, the scheme is not seen as an anti-avoidance tool, but as a means to safeguard the national tax base from erosion caused by loans taken out by German companies with foreign entities. However, this protective measure clashes with the preservation of the freedoms guaranteeing the European market and has been referred to the Constitutional Court. In particular, the limitation of deductible interest expenses would first of all violate the constitutional principle of equality. Ultimately, the purposes put forward in the justification for the limitation of the deductibility of interest, namely the strengthening of the equity capital base or the encouragement of foreign investments, cannot, therefore, justify the limitation, not even from the point of view of securing the national tax base.

Jacques, qui aimait le futur

Adriano Di Pietro — 2022-09-21

Comment on the European Court of Justice case C- 388/19, 18.03.2021

Vasco Branco Guimarães — 2022-09-21

Article 63 TFEU, read in conjunction with Article 65 TFEU, must be interpreted as precluding the legislation of a Member State which, in order to permit the capital gains realised from the transfer of immovable property situated in that Member State, by a taxable person resident in another Member State, to not be subject to a tax burden greater than that which would be applied to capital gains realised from the same type of transaction by a person resident in the first Member State, makes the taxation regime applicable dependent upon the choice made by that taxable person.

La funzione della Corte di Giustizia rispetto alla formazione dell’ordinamento tributario comunitario

Pietro Boria — 2022-09-21

The article analyzes the role of the European Court of Justice within the european legal system with particular regard to its creative function, that gives special relevance to the European court’s activity, qualifying it as a fundamental element in the definition of the system of sources of law. In a more specific way, it is possible to identify in the european jurisprudence some orientations and to indicate the principles emerging from the european legal system with regard to the regulation of direct and indirect taxation. In any case, it is highlighted how the tax phenomenon in the European context can be traced essentially to a negative dimension.

La funzione degli aiuti di Stato europei nella fiscalità del XXI secolo

Rossella Miceli — 2022-09-21

Over the last twenty years a new thought of european juricidal integration with regard to tax matter has been consolidated. It is a concept that uses the state aid framework and implements the principles of economy social market. Through an important activity of negative and positive integration, state aid framework has assumed, the function of general paradigm of compatibility of national fiscal measures with european rules. What emerges is a tax system deeply renewed and focused on the development of economic and social values within the european market.

L'Europa e la riforma fiscale nazionale

Adriano Di Pietro — 2022-09-21

The forthcoming approval of the Italian tax reform marks typically national intentions and patterns. The reform, in fact, limits national responsibility for the harmonisation of vat, focusing on rates, whereas national responsibility for the future implementation of the European directive on reduced rates is lacking. National intentions on vat implementation then focus on tax reactions to evasion and avoidance without accompanying them with specific solutions. Comparative experience is also not taken into account for the progressivity of personal taxation, which remains differentiated in the European field. Instead, the choice of regulating capital income independently of personal taxation appears to be constant in the European experience. albeit with different rates. Constant and shared in the European sphere, then, is the national choice to accentuate the link between business income and the result of the civil balance sheet. In the same way, the regulation of corporate taxes is still a subject of wide European competition, in particular due to the different economic impact of the national rates adopted. On the other hand, any attention is lacking to a tax such as inheritance tax, whose limited tax incidence in Italy accentuates the interest for European taxpayers to locate in our country. Thus, the Italian tax regime fuels a European tax competition made evident by the large rate differential that differentiates Italian inheritance tax choices from those of other European states.

Esigibilità dell’accisa e soggettività passiva: considerazioni sulla nozione di “debitore” nella direttiva 2008/118/CE. Commento a Corte Giust. 10 giugno 2021, WR, C-279/19

Paolo De Quattro — 2022-09-21

The aim of present work is to investigate the meaning of the term “debtor” developed by the Court of Justice of the European Union in the field of excise duties. The paper shall also examine the relevance of the holder’s awareness about the effective commercial use of the taxable products.

La respuesta definitiva al cálculo de la base imponible del IVA en las operaciones no declaradas

José Manuel Macarro Osuna — 2022-09-21

The determination of the VAT taxable base in fraudulently hidden transactions has been a controversial issue, both in the Spanish domestic law and EU harmonized rules. It is an issue where key VAT principles come into play, as tax neutrality and the fight against tax fraud. The Spanish Supreme Court has ruled that the only solution respectful of VAT neutrality is to consider that the amounts paid and received include VAT. Recently, the CJEU has validated this doctrine, although has limited the cases in which it can be applicable: when the taxable person does not have the possibility of subsequently passing the VAT at issue.

On the feasibility of the Spanish Tax on the Value of Electricity Production in respect of the European Union Law

Daniel Casas Agudo — 2022-09-21

In virtue of Judgement of the European Union Court of 3 March 2021, Oliva Park (case C-220/19), the Spanish Tax on the Value of Electricity Production was declared to be in accordance with Community Law. This tax was intended to adapt the Spanish tax system to a more efficient and environmentally friendly use of electricity and its legality, both internally and in light of the European Union Law, was questioned from its very creation by Spanish Law 15/2012, of 27 December. The purpose of the present piece of work is to analyse the main grounds for rejection presented by the European Court of the preliminary matters put forward, with a special focus on the problems involved in classifying such a tax as a ‘direct’ one, as regards its degree of compliance with the European system.

Identificación del proveedor a efectos de la deducción en el impuesto sobre el valor añadido

Enrique de Miguel Canuto — 2022-09-21

What role does the identification of the supplier play for the purposes of being able to deduct the amounts accrued, in the declaration of the taxpayer, who has received the goods or services? Case law has distinguished between the supplier's identification on the invoice, which is a formal requirement for the receiver to make the deduction, and the supplier's identity, because his status as a taxpayer is a material requirement of the right to deduct, on VAT.

I Care a Lot – La disciplina IVA dell’indennità degli amministratori di sostegno tra obbligo di cura, rimuneratività e rilievo sociale delle prestazioni

Piera Santin — 2022-09-21

The article analyses the issue concerning the imposition of value added tax VAT on the supply of services performed by a lawyer under powers of representation for the protection of adults lacking legal capacity entrusted to him in pursuance of the law by the competent judicial authority, according to a recent EU pronunciation. The solution is strictly connected both with the facts at the origin of the procedure and the national legislation. According with the EUCJ case-law such services may be considered as a supply of services closely linked to welfare and social security work and, consequently, exempted ex art. 132 lett. g of the VAT directive.

Effetti fiscali della pandemia

Giuseppe Melis — 2022-09-21

The work examines the tax measures adopted in Italy to counter the pandemic crisis. These measures aimed at tackling the liquidity crisis, extending tax obligations and suspending the control activity of the tax offices, rewarding those who distinguished themselves with particularly meritorious behaviour during the pandemic crisis, and strengthening businesses and encouraging their relaunch and investment. This is followed by an overall assessment of the various measures, an analysis of possible medium- to long-term tax measures, and a consideration of how to raise the additional revenue needed to meet financial needs.

La fiscalidad en el contexto de la pandemia del Covid-19. Apuntes sobre el caso español

César García Novoa — 2022-09-21

The Covid-19 pandemic affected all areas of life. Also to taxation. Taxes have served to help fight the pandemic. Tax relief measures have also been introduced. It is time to encourage the reactivation of the economy with tax measures.

Les mesures fiscales adoptées par la France dans le cadre de la crise sanitaire du Covid 19

Bruno Trescher — 2022-09-21

While the Covid 19 crisis had major consequences in many French law areas, it has not, however, given rise to a major overhaul of the French tax system. Indeed, the legislator did not significantly modified the major taxes, whether for individuals or for companies. It preferred short-term, one-off and non-permanent reforms. In addition to specific measures directly linked to the health emergency (such as 0% VAT for vaccines against covid-19 and screening tests), the action of the legislator has developed around three axes. First of all, many measures have been taken to grant payment facilities to companies. Secondly, specific measures were adopted in terms of rent waivers to deal with the consequences of the various lock-downs and the “freezing” of economic life thereof. Finally, the legislator has apprehended the consequences of deficits linked to the slowdown of the economy to introduce possibilities of early repayment of deficit carry-back claims. Unlike other branches of law, the COVID 19 crisis did not therefore play the role of accelerating changes in taxation system.

Tax Position of Companies in Distress

Frank J. Elsweier — 2022-09-21

In this article, the loss relief rules for companies established in the Netherlands are discussed in light of current developments in legislation, case law and literature. The article discusses loss relief rules within a year and beyond a year. The loss relief rules within a year governing the recognition of losses on assets that affect the annual taxable result. The tax consequences of a write-down on a receivable, a participation loss, a liquidation loss and the possibility introduced by the legislator to offset COVID-19 related losses by creating a reserve are explicitly discussed. The loss relief rules beyond a year are the losses still to be set off determined by decree at the end of the fiscal year (relievable losses). Various subsections deal with loss relief periods, loss relief deferral (verliesverrekeningstemporisering), holding company losses, trading in loss entities, loss relief in mergers and demergers, and the single-fiscal unity regime. The article ends with a concluding observation.

La tributación ambiental al alza en España

Cristóbal J. Borrero Moro — 2022-09-21

Environmental taxation in Spain constitutes nowadays a consolidated legal reality which is moreover underway a slow, but continuous, growth; in the light of both the accredited internal political will; as well as the insistent recommendations of international organizations, and notably, the European Commission; in order to establish environmental taxes to internalize the environmental costs generated by the economy and consumption; thus increasing the government revenue which enables, at the same time, to reduce the labour related taxes; and to direct behavior towards the path compatible with the preservation of the environment. Proceeding in this article to the analysis of the alleged environmental taxes present in the Spanish tax system with the aim of pointing out those legal aspects that do not fit fully into the environmental nature of the tax.

La reforma del sistema de recursos propios de la UE: el recurso sobre los residuos de envases de plástico no reciclados y el proyecto de mecanismo de ajuste en frontera de las emisiones de carbono

Eva María Cordero González — 2022-10-11

This paper analyzes the reform of the Community own resources system carried out by Council Decision (EU, Euratom) 2020/2053, within the Multiannual Financial Framework 2021-2027. It addresses the background of the reform and its substantial aspects, with special emphasis on the new resource on non-recycled plastic packaging waste, as part of the European strategy on circular economy and its translation to the domestic level in some Member States, in the case of Spain, through a new excise tax on non-reusable packaging approved by Law 7/2022, of April 8. In accordance with the binding timetable approved by the Community institutions for the progressive introduction of own resources, the proposal for a carbon border adjustment mechanism, published by the Commission in its Communication COM(2021) 564 final, is analyzed, with the aim of contributing to the reduction of greenhouse gas emissions within the framework of the Paris Agreement and the Commission's Fit for 55 package.