Studi Tributari Europei

The regulation for excise duties: when is it too much or still reasonable to collect?

Mihaela Tofan — 2023-10-03

The exemption from excise duty covers both ethyl alcohol that is intended for use, and ethyl alcohol that has already been used, once ethyl alcohol has been released for consumption in a Member State and that Member State has correctly applied the exemption from excise duty. the EU law, the principles of effectiveness and proportionality, permit a Member State to impose procedural requirements on a trader in excise goods that had obtained the benefit of an exemption from excise duty in the Member State where those goods had been produced and released for consumption only where those procedural requirements are strictly necessary to ensure the correct and straightforward application of the exemption in question and to prevent any evasion, avoidance or abuse.

Joint audits in the European Union and the protection of Taxpayers’ rights

José Antonio Cortés Torres — 2023-10-03

Joint audits are administrative enquiries conducted jointly by the competent authorities of two or more Member States about one or more persons of their interest –either common or complementary. They should be structured to offer legal certainty to taxpayers through clear procedural rules, including, among others, measures to mitigate the risk of double taxation. They are a useful tool for administrative cooperation in the field of taxation and can play an important role in contributing to the better functioning of the internal market within the European Union.

La configuración jurisprudencial a nivel nacional y europeo del principio de proporcionalidad en el establecimiento de sanciones tributarias

Julia López Espejo — 2023-10-03

The principle of proportionality is not only a purely theoretical general principle of law but has been consistently used by national and European courts to assess whether certain conduct by national public authorities violates the rights and freedoms enshrined in the different legal texts, specifically with regard to the establishment and application of sanctions through the ius puniendi of the States. Although it is commonly acknowledged that all sanctions in general, and tax sanctions, must be proportionate to the reproachability of the typical wrongdoing carried out by the offending party, the content of the principle has not been uniformly defined by national and supranational courts. In this paper we therefore set out to examine the existing constitutional and European case law on the principle of proportionality in the establishment of tax penalties to detect the differences between the constitutional and European levels of protection and ascertain whether our Constitutional Court meets the standards of protection established by the European courts.

El principio de buena administración en Italia y en el Derecho europeo

Adriano di Pietro — 2023-10-03

A good administration is placed between European principles and national limits. Article 41 of the Charter of Fundamental Rights serves as the foundation and limit of its legl effectiveness. An effectiveness that places it as an alternative to the limited, although majority, interpretation of the national application. Therefore, it allows the limit of inequality of treatment to be exceded in the national protection of taxpayers for taxes of national jurisdiction. The nullity of acts that do not applied is the best guarantee of the national effectiveness of good administration as well as the responsibility of the tax judge in the recognition full of the principle of good administration.

La lucha contra el fraude fiscal y el ejercicio de las libertades comunitarias

Ana Isabel González González — 2023-10-03

The Judgment of the Court of Justice of the European Union of January 27, 2002, (European Commission v Kingdom of Spain, C-788/19), resolves an action for failure of a Member State to fulfil obligations in relation to the obligation to provide information concerning assets or rights held in other Member States, which was approved in Spain in 2012. The Spanish government justifies this measure in order to prevent tax evasion. For the Court of Justice of the European Union, the need to guarantee the objective of preventing tax evasion and avoidance is a reason in the public interest capable of justifying the imposition of a restriction on the freedoms of movement. But this measures can’t go beyond what is necessary to achieve this objective. The analysis of this sentence and its consequences is the object of this work.

Singladura del “doble canon” en el control constitucional del Derecho de la Unión

Enrique De Miguel Canuto — 2023-10-03

What control can the Constitutional Court exercise over the judge’s judgment on the application of Union Law to the case? Two theses have made their way, in a dialectical relationship, into the Spanish constitutional case law: the double parameter theory and the unit parameter theory. Is it possible to reach a confluence or harmony between the two theories?

El principio de proporcionalidad y el ejercicio de la potestad sancionadora en tributos armonizados como el IVA

Jesús Ramos Prieto — 2023-10-03

In a tax harmonised within the EU such as VAT, the protection that the principle of proportionality must offer taxpayers as a limit to the exercise of the tax administration's power to impose penalties has a twofold effect: as a general principle of EU law and as a constitutional principle of domestic law. Two cases of tax penalties applicable to VAT are assessed in the light of the doctrine of the ECJ.

El régimen suspensivo de los impuestos especiales ante el fraude de terceros

Teresa Puchol Tur — 2023-10-03

The excise duty suspension regime delays the taxable event, subject to certain conditions. This ensures that the products subject to excise duty move free of charge within the single market, thereby fulfilling as effectively as possible the fundamental freedom of the free movement of goods in Europe. The judgment of the Court of Justice of the European Union under consideration is dated 24 March 2022. The judgment concerns a dispute between TanQuid, a Polish company, and the Supreme Administrative Court of the Czech Republic. The subject matter of the judgment is whether the suspension of excise duties should be applied in cases where the transport of the goods has been initiated by third party fraud and the final recipient is not aware of it. Finally, the CJEU ruled that in this case the duty suspension arrangement does apply. Therefore, the person liable for payment of excise duty is the depository receiving the excisable goods and not the consignor, even if the infraction was committed at the time of dispatch.

The untimely submission of evidence for the exercise of rights arising from transactions subject to VAT

Yohan Andres Campos Martinez — 2023-10-03

The legal systems of the Member States of the European Union have developed a system of “onus probandi” at tax level which is based on a series of rules in which the procedural elements appear to be fundamental as opposed to the material elements through which a tax reality can be verified. However, VAT, with the technical particularities that characterise it and its high level of harmonisation at European level, presents certain mechanisms within which, in certain cases, the evidential requirements at a material level tend to prevail over the procedural elements with the aim of achieving the neutrality of the tax. In the decision under study, the CJEU assesses whether it is possible to refuse the application of VAT exemptions and deductions when the evidence necessary for the exercise of these rights is submitted untimely. To do so, it considers it necessary to analyse this possibility from the perspective of the principles of neutrality, proportionality and effectiveness of the procedural measures applied.

Ancora sulla prova delle frodi carosello. Note a margine della sentenza della Corte di Giustizia nel caso Aquila Part

Gianluigi Bizioli — 2023-10-03

Under European law, the right to deduct may be denied not only where the taxable person actively participated in a fraud, but also where it can be shown that the taxable person could have known, using the required diligence, that he was participating in a fraudulent scheme. Where there are indications that irregularities or fraud are suspected, the taxable person must prove that he took extra care to ensure that the transaction in which he participated was not part of a fraudulent scheme.

Tribute to Frans Vanistendael: a personal journey through his writings

Edoardo Traversa — 2023-10-03

Frans Vanistendael (1942–2021) was a visionary tax academic. A tireless traveler of European and world universities, he had developed throughout his career a communicating enthusiasm for the Europeanisation of taxation. Combining an indisputable technical competence with an extraordinary capacity for abstraction, he was a university person in the etymological sense of the term, i.e. oriented towards the universal, while at the same time deeply embedded in the political, social and economic reality of his time.

Nota del Ministero Federale delle Finanze tedesco sulla limitata detraibilià degli interessi passivi

Bundesministerium der Finanzen — 2023-10-03

Bundesverfassungsgericht (Tribunale Costituzionale Federale): Massime

Bundesverfassungsgericht — 2023-10-03

Determinanti giuridico – europee del diritto tributario nazionale

Steffen Hindelang — 2023-10-03

The Ability to Pay Principle: a Portuguese/Brazilian perspective

Gloria Teixeira — 2023-10-03

Despite the possible negative points of the wealth tax, this tax has the substantial function of diminishing social inequalities, the assumption of which is a vital element of the ability to pay principle. Wealth taxation should be the rule and not the exception in the range of opportunity in tax policy.

A jurisprudential approach to the Spanish ability to pay principle: current issues

Lorena Gallardo López — 2023-10-03

This paper analyses current issues related to the ability to pay principle enshrined in the Spanish Constitution, to see how it influences the establishment of Spanish taxes. To do so, it is necessary to start with a conceptual analysis of this principle, as well as its relationship with the rest of the principles of tax justice enshrined in the Spanish Constitution. The different exceptions to this principle admitted by the Constitutional Court, as well as features of the Spanish State, such as its decentralised nature, which influence its application, are also explained.