date | theme

25. February 2021 | Tax assessment & tax collection at the German tax easing

09. February 2021 | Tax de-engagement & deferral: period and time of payment

04. January 2021 | Tax easing: Taxes on the departure of business assets abroad

06. June 2020 | European law-compliant interpretation and European law inconsistencies in cases of departure and tax easing (this contribution)

05. June 2020 | Anti-Tax Avoidance Directive (ATAD): Critical analysis of early taxation in cases of departure and tax easing

03. June 2020 | Exit taxation & tax easing: Critical analysis of (early) immediate taxation

27. May 2020 | Actual tax easing in cross-border conversions in light of the changed understanding of the agreement by the BFH (task of the final extraction theory)

26. May 2020 | Legal tax easing in light of the changed understanding of the agreement by the BFH (task of the final extraction theory)

25. May 2020 | Tax easing in light of the amended understanding of the agreement by the BFH

Since it has already been shown that the German tax easing regulations are incompatible with European law, since the European law regulations take precedence over the German regulations, it is necessary to clarify in application examples (scenarios) how you behave the tax easing and what consequences result from this. In these scenarios, the violations of fundamental freedoms in European law are also addressed and what consequences this entails.

It has been shown that both the general and the special de-tricking standards in German tax law are incompatible with European law in many applications. The question is how to deal with these standards.

Priority must be granted to the interpretation in accordance with European law. If the wording of a standard is accessible both to an interpretation contrary to European law and to an interpretation conforming to European law, the interpretation conforming to European law must be chosen within the framework of the interpretation conforming to European law by the national courts.[804] This obligation of the national courts derives from the principle of preservation of standards (favor legis) and serves to protect national law against excessive failures of national regulations due to European law.[805] The advantage of the interpretation conforming to European law is that the standard is maintained in principle and its legal consequences continue to apply. The European law-compliant interpretation has its limits in the wording of the standard. If the wording is so narrow that it obviously no longer allows any other interpretation, an interpretation in conformity with European law is inevitably excluded.[806]

In the absence of any possibility of interpretation, the application priority of primary law over Member State law leads to the conformity with European law of the national standard.[807] In these cases, the standard in question is not fully applicable to both past and future situations. If tax rulings have already been issued on the basis of this inapplicable regulation, they must be withdrawn regardless of national amendment provisions.[808]

Insofar as the German untapping standards violate the freedom of establishment or capital movement, the following consequences result: