Regulation 5 of the Anti-Tax Avoidance Directive : a mirror image of several years of CJEU case law on exit taxation?

Abstract

The scope of this research project is to assess the extent to which the provisions of Regulation 5 of ATAD have in principle derived from past principles laid down in CJEU case law. Upon the relocation of tax residence of a taxpayer or on certain cross-border transfer of assets, taxpayers have historically been subjected to tax or company law consequences that could discourage them to do so. In Chapter 1, the author shall present a general discussion with respect to what led Member States to impose an ‘exit tax’ on taxpayers. Due to the lack of harmonization of EU laws on direct taxation, Member States opted to introduce their own set of rules to safeguard their right to taxation. The second part of this Chapter will provide an outline of relevant EU law principles. In Chapter 2, the author shall carry out an assessment of a selection of CJEU rulings on the subject. The EU has delivered a number of significant judgements namely, De Lasteyrie du Saillant, National Grid Indus, N v Inspecteur, Cartesio, Überseering and Daily Mail. National Grid Indus, in particular signifies an important refinement of the position of exit taxes in the EU and its judgment was the first time that the CJEU specifically addressed the issue of exit taxes arising on a corporate migration of tax residence within the EU. In Chapter 3, the author shall present the issues surrounding exit taxes and their respective potential mitigations emanating from the judgments of the CJEU. These issues include double taxation, cash-flow disadvantages and fluctuations in asset value. In Chapter 4, the author shall assess how Regulation 5 of the ATAD has been influenced by established judgments of the CJEU, with a view to reach a conclusion as to whether, or at least to what extent, the provisions in ATAD reflect the findings and decisions of the CJEU.