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Tax Avoidance through Controlled Foreign Companies under European Union Law with Specific Reference to Poland

Author

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  • Kuźniacki Błażej

    (Public and International Law, University of Oslo, Postboks 6706 St. Olavs plass, Oslo0130, Norway)

Abstract

This article demonstrates that tax avoidance via controlled foreign companies (CFCs) established in the most favourable tax environments among EU Member States such as Ireland, Luxembourg, the Netherlands, and Cyprus, remains a considerable problem. Not only does it affect taxpaying residents in the Member States but, indirectly, all taxpayers regardless of their EU affiliation, US multinational enterprises (MNEs), for example. Focusing on the use Polish taxpayers make of CFCs, this study undertakes a detailed legal analysis of the problem of tax avoidance under EU law by examining empirical data and EU law on tax avoidance. The choice of this topic is largely justified by the exponential rise in tax avoidance schemes through CFCs involving Polish taxpayers since the country’s accession to the EU. The legal analysis brings to light a series of weaknesses in the current EU law that make it possible for both EU and non-EU taxpayers to avoid taxation. As a solution to this problem, the author suggests that CFC rules should be designed so as to tax only “tax avoidance income” from CFCs. This would ensure their compliance with EU law as well as an effective prevention of tax avoidance via CFCs within the framework of EU law. Interestingly, the solution follows from the author’s interpretation of the concept of “wholly artificial arrangements” in favour of the internal market rather than from Action 3 of Base Erosion and Profit Shifting (BEPS) project or Anti-Tax Avoidance Directive as adopted by the Council on 12 July 2016.

Suggested Citation

  • Kuźniacki Błażej, 2017. "Tax Avoidance through Controlled Foreign Companies under European Union Law with Specific Reference to Poland," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 7(1), pages 1-48, April.
    • Handle: RePEc:bpj:aelcon:v:7:y:2017:i:1:p:47:n:1
    DOI: 10.1515/ael-2015-0018
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    References listed on IDEAS

    as
    1. Fuest, Clemens & Spengel, Christoph & Finke, Katharina & Heckemeyer, Jost H. & Nusser, Hannah, 2013. "Profit shifting and 'aggressive' tax planning by multinational firms: Issues and options for reform," ZEW Discussion Papers 13-078, ZEW - Leibniz Centre for European Economic Research.
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    5. Reinhard Neck & Jens Wächter & Friedrich Schneider, 2012. "Tax avoidance versus tax evasion: on some determinants of the shadow economy," International Tax and Public Finance, Springer;International Institute of Public Finance, vol. 19(1), pages 104-117, February.
    6. Biondi Yuri, 2011. "The Pure Logic of Accounting: A Critique of the Fair Value Revolution," Accounting, Economics, and Law: A Convivium, De Gruyter, vol. 1(1), pages 1-49, January.
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    Keywords

    tax avoidance; CFC; EU law; CJEU; OECD; BEPS;
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