The 'Abuse of Tax Law' : Prospects and Analysis

The paper is the result of the Doctoral Course 'The abuse of the concept of abuse in tax law' that was taught in Bergamo 2008. The paper stresses the problems for having different approaches to tax avoidance and, therefore, tax abuse, and tries to reconcile the different approaches from a comparative perspective. One key point in doing that is to identify the subjects abusing tax laws. Up to now, little has been formulated when the States themselves abuse tax laws, their application and their enforcement, and the same is true as regards tax treaties. In fact, VCLT does not have a specific reaction in case of signatory States abusing but not breaking the treaty. The paper considers that there is a tendendy in different legal orders to identify tax abuse depending on the type of the counteracting measures to tackle it. Therefore, an analysis of the different generic and specific measures against tax abuse, both at domestic level and at tax treaty and EU Law level. A significant part of the work is devoted to the consideration of tax abuse in EU Law, explaining the origins of the doctrine, its formulation as a general EU Law principle and the specific areas in which it has been applied, considering the 'main purpose', the 'essential aim', the 'wholly artificial arrangement' schemes, the compatibility analysis and the enforcement problems of these doctrines