#Auteur: Ivo¤ KUIPERS
#Qualités: Tax Partner, Atlas Tax Lawyers (Amsterdam)
The Dutch legislator decided not to implement the General Anti-Avoidance Rule (GAAR) of the EU Anti-Tax Avoidance Directive (ATAD) and to rely on the court developed fraus legis doctrine. As there are several discrepancies between the GAAR of ATAD and the concept of fraus legis, question arises whether this is actually sufficient for a proper implementation.
1. The Anti-Tax Avoidance Directive (ATAD) as adopted by the European Council contains anti-abuse measures which Member States of the European Union had to implement in their domestic laws. The ATAD set minimum standards and Member States were free to impose more strict rules. Article 6 of ATAD contains a general anti-avoidance rule (GAAR), with the aim to tackle abusive tax practices that have not been dealt with through specifically targeted provisions. Like most of the ATAD measures, the GAAR should have been implemented by the Member States before 1 January 2019.
After the release of BEPS Action 6, it has been considered important by the European Commission to ensure that the GAAR applies in a uniform manner, so that the scope and results of the application in domestic and cross-border situations do not differ1.
The following table reflects how the ATAD has been transposed into Dutch law: