Limits to Tax Planning

S. 543 1. Introduction

It is difficult to find one general description of “abuse of rights” as its content differs from jurisdiction to jurisdiction in the field of taxation. Additionally, there are even differences in the interpretations within one jurisdiction. The line between what constitutes abusive practice and what qualifies as tax planning is quite flexible. It is better to describe abuse as concepts of abuse, accepting that the content and the terminology may vary from country to country even though the concepts are similar. It seems that the ECJ has been developing a notion of abuse of EU law in a tax context. This activity meets the MSs’ aim and the recent developments in the field of EU-level tax legislation. In 2003, the EU legislative body provided for a series of important directives in the field of taxation, creating – among other things – a directive with the ultimate aim of combatting tax avoidance: The Savings Directive.

Due to this ultimate aim, the EUSD is unique among the EU directives dealing with taxation, as the EUSD itself has to be considered an anti-abuse concept. The ultimate aim of the EUSD is the taxation of all private savings income in the form of interest ...