Tax Treaty Case Law around the Globe 2020
1. Aufl. 2021
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S. 353Chapter 30 Spain: The Right to Initiate the Mutual Agreement Procedure in a Tax Fraud Case – Challenges Ahead
Ricardo García Antón
30.1. Introduction
On , the Spanish National Tribunal (Audiencia Nacional, or AN) handed down its decision denying the request for a mutual agreement procedure (MAP) in a case of tax fraud. This judgment could be understood as a setback in relation to the previous hallmark decision of the AN of 28 March 2017 and international standards. In this case, it was concluded that the denial of the MAP by Spanish tax administration cannot be justified in cases in which the tax administration conclude that there was abuse under national law but still economic double taxation to be relieved.
This judgment should be analysed in the context of two relevant legal texts: (i) the recent Spanish implementation of the EU Dispute Resolution Directive (DRD) through Royal Decree 3/2020, which jeopardizes the MAP and arbitration in cases involving the levying of sanctions; and (ii) the forthcoming reform of the Spanish regulation of the MAP, in which it is expressly acknowledged that the initiation of the MAP cannot be denied in cases of tax fraud under Spanish law. This chapter aims to provide brief arguments grounded in the principle of unjust enrichment and the right to property to plead for the initiation of the MAP to grant relief for economic double taxation.