Tax Treaty Case Law around the Globe 2022
1. Aufl. 2023
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35.1. Introduction
On , the Spanish National Tribunal (AN) handed down a decision denying the request for a mutual agreement procedure (MAP) in a case of application of the Spanish general anti-avoidance rule (GAAR) in a tax treaty situation. This judgment was understood as a setback in relation to the previous hallmark decision of the AN of 28 March 2017 and international tax standards. In this last case, it was concluded that the denial of the MAP by the Spanish tax administration cannot be justified in cases in which the tax administration concluded that there was abuse under national law but still economic double taxation to be relieved. Now, the Supreme Court – in a judgment of , SGL Carbon Holding, rec. 6429/2019, has confirmed the judgment of the AN of 2019 to rule that the application of the Spanish domestic GAAR precludes access to the MAP in cases where there can be potential double taxation and, therefore, where it would make sense – from an international tax perspective – to activate the MAP. Such a Supreme Court judgment (Carbon Holding) is the object of this chapter.
However, Carbon Holding is peculiar in its argumentation. It has been d...