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GAAR implementation in the Netherlands: does fraus legis suffice?

Nederveen, Cas LU (2019) HARN60 20191
Department of Business Law
Abstract
This thesis regards a research to the implementation of the GAAR in the Netherlands. It focuses on the PPT and the ATAD GAAR. According to the Dutch government, there is no need for implementing a GAAR, since it is covered by the fraus legis doctrine. According to this research, there are however some differences between the doctrine and the GAARs.

The PPT has a focus on the subjective test, while the objective test can be seen as an escape to still be granted benefits. Albeit fraus legis also has both tests, it is more stringent in its application than the PPT. The ATAD GAAR is a reflection of case law of the CJEU. The differences between fraus legis and the ATAD GAAR are that the ATAD GAAR has a broader subjective test; has an... (More)
This thesis regards a research to the implementation of the GAAR in the Netherlands. It focuses on the PPT and the ATAD GAAR. According to the Dutch government, there is no need for implementing a GAAR, since it is covered by the fraus legis doctrine. According to this research, there are however some differences between the doctrine and the GAARs.

The PPT has a focus on the subjective test, while the objective test can be seen as an escape to still be granted benefits. Albeit fraus legis also has both tests, it is more stringent in its application than the PPT. The ATAD GAAR is a reflection of case law of the CJEU. The differences between fraus legis and the ATAD GAAR are that the ATAD GAAR has a broader subjective test; has an artificiality test; applies to cross-border situations; and ignores arrangements when they are deemed to be artificial instead of applying a substitution doctrine. The Netherlands therefore seems not to fulfil the obligation to implement the GAAR and should consider rewriting its statutory GAAR richtige heffing, which is not in effective use anymore, so that it complies with the ATAD GAAR. (Less)
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author
Nederveen, Cas LU
supervisor
organization
course
HARN60 20191
year
type
H1 - Master's Degree (One Year)
subject
language
English
id
8980256
date added to LUP
2019-06-13 13:27:04
date last changed
2019-06-13 13:27:04
@misc{8980256,
  abstract     = {This thesis regards a research to the implementation of the GAAR in the Netherlands. It focuses on the PPT and the ATAD GAAR. According to the Dutch government, there is no need for implementing a GAAR, since it is covered by the fraus legis doctrine. According to this research, there are however some differences between the doctrine and the GAARs.

The PPT has a focus on the subjective test, while the objective test can be seen as an escape to still be granted benefits. Albeit fraus legis also has both tests, it is more stringent in its application than the PPT. The ATAD GAAR is a reflection of case law of the CJEU. The differences between fraus legis and the ATAD GAAR are that the ATAD GAAR has a broader subjective test; has an artificiality test; applies to cross-border situations; and ignores arrangements when they are deemed to be artificial instead of applying a substitution doctrine. The Netherlands therefore seems not to fulfil the obligation to implement the GAAR and should consider rewriting its statutory GAAR richtige heffing, which is not in effective use anymore, so that it complies with the ATAD GAAR.},
  author       = {Nederveen, Cas},
  language     = {eng},
  note         = {Student Paper},
  title        = {GAAR implementation in the Netherlands: does fraus legis suffice?},
  year         = {2019},
}