Las normas generales antielusión en la jurisprudencia tributaria española y europea

Abstract

SUMMARY/ABSTRACT: General anti-avoidance or anti-abuse rules serve an important function in the application of any tax system. In the past few years, moreover, we have seen an expansion of such rules owing to their codification in various legal systems and incorporation into European Union Law and International Tax Law texts. This research work is based on the understanding that the general anti-circumvention rules present in Spanish Tax Law are the so-called “conflict in the application of a tax provision”, regulated in article 15 of the General Taxation Law, and the rules on characterization and simulation which are to be found in articles 13 and 16, respectively, of the same law. Spanish positive Law therefore includes these general anti-avoidance rules, and what is more, the conflict in the application of a tax provision predates the evolution of such rules in comparative law. This work is nevertheless based on the assumption that the construction of these general anti-avoidance rules depends primarily on their application by the Courts of Justice. To analyze their content, I shall therefore be focusing on the complete and complex case law produced to date by the Supreme Court, supplemented by the doctrine of the European Union Court of Justice, which has provided the judicially constructed anticircumvention rule in European Union law which the EU has subsequently sought to reflect in positive rules, particularly article 6 of Directive 2016/1164. This Directive, on the other hand, calls for reference to be made to the recent impact of the OECD’s BEPS Project in this area. The conclusions I shall be proposing on the basis of the forgoing will provide a critical appraisal of the consequences of the application of these rules by the judiciary in Spain and offer some ideas or suggestions for the future.