The (Social) Tasks of Business Tax Research and the Binding Effect of the Statutory Tax Burden Decision

Against the background of taxation, this article critically examines Schmiel’s commentary “Why tax planning without considering societal interests is unfounded” (https://doi.org/10.1515/ael-2021-0115) and points out the overarching context. This rejoinder argues that the task and the object of my business tax research article, namely to analyse value-neutral tax regulations, in this case the ATAD CFC taxation regulations, with regard to their effectiveness and their achievement of objectives and to derive practical consequences for future tax legislation and further legislative development of the existing tax regulations. Through such an analysis, deficits in the effectiveness of the current tax regulations are revealed at an early stage and the legislator can react before tax losses occur (early information function). This is precisely how social interests are pursued and answered. Moreover, this rejoinder argues that in the area of taxation, it is exclusively the tax legislator who determines in the democratic legislative process which objectives, steering effects and (tax) burden effects it pursues with a norm and to what extent it pursues these objectives. The extent to which the legislator pursues societal or social interests with a tax norm is up to the legislator. This is the so-called assessment prerogative, i.e. the prerogative of the legislature (norm-setter) to decide on the appropriateness and necessity of a particular statutory regulation to achieve a legitimate goal in an ultimately binding manner, taking into account the interests of the state as a whole. This rejoinder rejects’ Schmiel’s claim to use critical rationalism as a methodological framework for research on tax law. From my viewpoint, only the objective will of the legislator (objective intention of the legislator, aim of the law, principle of legality) and the relevant legal principles and methodology as well as the methods of business tax research are relevant when it comes to examining the scope of application of current tax law provisions and their effectiveness, here the CFC taxation rules. Alternative theories such as critical rationalism, a philosophical view, appear to be too vague to ensure legal certainty and appropriate taxation.