This thesis is analyzing revenue dynamics of Lithuanian Republic budget of 2000 – 2006 years with direct aspect of taxes and the reasons which influed changes. In the beginning of thesis there was hypothesis, that incomes to national budget of population revenue taxes is the biggest part of budget revenue. The experiment was based on needs to value results of population revenue taxes decrease for budget. Objective conclusions about budget revenue, influed by 2006 years reform, can be done only by the end of this year. In despite of, this thesis is analyzing changes of budget already first months after reform. Also is analyzing other direct taxes structural parts in Lithuanian Republic national budget, taxes specification in countries of EU and the principles of processes of EU taxes harmonization, which are important for Lithuania in EU economic area.

Title in English: Legal aspects of tax planning in the direct tax area Abstract: In 2012, the European Commission published its Recommendation on aggressive tax planning (2012/772/EU). To counteract aggressive tax planning, Member States should adopt a general anti-abuse rule (GAAR), which is drafted in the Recommendation. At that time, no one knew that GAARs would become obligatory for member states from 2019. In 2013, Organization for Economic Co-operation and Development (OECD) started the BEPS Project, which is considered the biggest revolution in the international tax law system since its creation in the 1950s. I introduce these initiatives and the legal instruments they bring. I focus on GAARs, which I consider to be the most important instruments. Their vagueness allows them to tackle any tax planning scheme. Their importance in the direct tax area grows as they become part of tax treaties based on the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting signed on 7 July 2017 and part of the national legal systems of the EU member states based on the Council Directive (EU) 2016/1164 of 12 July 2016, laying down rules against tax avoidance practices that directly affect the functioning of the internal market. First part of this thesis focuses on...

Direct taxation is an area which has not been harmonized entirely within the European Community. Nevertheless, the ECJ has in its case law stated that even though direct taxation falls within the competence of the Member States, they may not exercise that competence by breaching EC law. At the same time the EC Treaty provides certain exceptions in the form of justifications for national measures resulting in such breach of EC Law. The justification grounds provided by the EC Treaty are, however, limited and general and not suitable for justifying tax measures. That is why the rule of reason has played such an important role within the area of direct taxation. The rule of reason made it possible to in-voke justification grounds that were not expressly mentioned in the EC Treaty. Since the list of justifying grounds, not provided by the EC Treaty, is open-ended, Member States have been invoking several different justifying grounds which were suitable for tax measures. One of those justification grounds which has been used the most is the preservation of the cohesion of the national tax system. The first time the cohesion of a national tax system was brought forward as a justifying reason for a restrictive measure was in the Bachmann case. There the ECJ held that the Belgian legislation could be justified on the ground of the cohesion of the national tax system. However, the ECJ has been applying the cohesion justification very restrictively and never accepted it as a valid justification ground after the Bachmann case. What the ECJ has done in subsequent cases is to develop the meaning of the principle and adding new criteria which must be fulfilled in order for the cohesion justification to be successfully invoked. However, during this course the ECJ has been very unclear and inconsistent, harming legal certainty, which taxpayers are supposed to expect. Even in the doctrine, authors have been questioning the validity of the cohesion justification due to the ECJ’s reluctance to accept it again. In connection with recent case law concerning cross-border dividend taxation, voices have been heard, demanding the ECJ to address the cohesion justification once more in order to set out clear boundaries for its application and to disperse the current legal uncer-tainty regarding the matter. As a consequence the aim of this paper is to analyze the appli-cation of the cohesion justification to cross-border dividend situations from a legal certainty perspective. As becomes clear from analyzing recent cross-border dividend cases, the ECJ seems to have departed from earlier established criteria and a new line of thought seems to direct the development towards the introduction and application of new criteria. Conclusively, we have found that the application of the cohesion justification by the ECJ has been very inconsistent and that this inconsistency has led to a considerable degree of legal uncertainty, making it difficult to predict the outcomes of future cases. Therefore, we conclude that the ECJ should take the opportunity, which has presented itself in recent cases concerning cross-border dividend taxation, to clarify the cohesion justification and set out clear definitions for how to apply it.

<p>Direct taxation is an area which has not been harmonized entirely within the European Community. Nevertheless, the ECJ has in its case law stated that even though direct taxation falls within the competence of the Member States, they may not exercise that competence by breaching EC law. At the same time the EC Treaty provides certain exceptions in the form of justifications for national measures resulting in such breach of EC Law. The justification grounds provided by the EC Treaty are, however, limited and general and not suitable for justifying tax measures. That is why the rule of reason has played such an important role within the area of direct taxation. The rule of reason made it possible to in-voke justification grounds that were not expressly mentioned in the EC Treaty. Since the list of justifying grounds, not provided by the EC Treaty, is open-ended, Member States have been invoking several different justifying grounds which were suitable for tax measures. One of those justification grounds which has been used the most is the preservation of the cohesion of the national tax system.</p><p>The first time the cohesion of a national tax system was brought forward as a justifying reason for a restrictive measure was in the Bachmann case. There the ECJ held that the Belgian legislation could be justified on the ground of the cohesion of the national tax system. However, the ECJ has been applying the cohesion justification very restrictively and never accepted it as a valid justification ground after the Bachmann case. What the ECJ has done in subsequent cases is to develop the meaning of the principle and adding new criteria which must be fulfilled in order for the cohesion justification to be successfully invoked. However, during this course the ECJ has been very unclear and inconsistent, harming legal certainty, which taxpayers are supposed to expect. Even in the doctrine, authors have been questioning the validity of the cohesion justification due to the ECJ’s reluctance to accept it again. In connection with recent case law concerning cross-border dividend taxation, voices have been heard, demanding the ECJ to address the cohesion justification once more in order to set out clear boundaries for its application and to disperse the current legal uncer-tainty regarding the matter. As a consequence the aim of this paper is to analyze the appli-cation of the cohesion justification to cross-border dividend situations from a legal certainty perspective. As becomes clear from analyzing recent cross-border dividend cases, the ECJ seems to have departed from earlier established criteria and a new line of thought seems to direct the development towards the introduction and application of new criteria.</p><p>Conclusively, we have found that the application of the cohesion justification by the ECJ has been very inconsistent and that this inconsistency has led to a considerable degree of legal uncertainty, making it difficult to predict the outcomes of future cases. Therefore, we conclude that the ECJ should take the opportunity, which has presented itself in recent cases concerning cross-border dividend taxation, to clarify the cohesion justification and set out clear definitions for how to apply it.</p>

This thesis examines whether the fundamental freedoms of the EC Treaty prescribe most-favoured-nation (MFN) treatment. The right to MFN treatment concerns the issue whether taxpayers resident in one Member State can “cherry-pick” the most beneficial tax treaty available to other taxpayers. Two issues of fundamental impor-tance are examined in this thesis. First, whether a resident of a Member State (A) who receives income in another Member State (B), can claim from that state, the most beneficial tax treaty available to a resident of a third Member State (C). Second, whether a resident can claim from his state of residence (A), the same tax treatment as provided in a tax treaty concluded by his state of residence and another Member State (C), when this tax treaty provides better treatment in terms of avoiding double taxa-tion in the state of residence than the tax treaty applicable to the source of income (B). The ECJ has held that discrimination arises only through the application of different rules to comparable situations or the application of the same rule to different situa-tions. The current state of EC law prohibits unequal treatment of residents and non-residents as well as residents who have exercised their rights to free movement in comparison to residents who have not. The condition is that they must be considered to be in comparable situations and that there is no objective difference to justify the difference in treatment. The ECJ has so far not ruled on the MFN issue. It is there-fore uncertain as to whether Member States are obligated to treat; 1) different non-resident taxpayers equally and, 2) whether Member States are prohibited from treat-ing their own residents differently when they exercise their rights to free movement in different Member States. This thesis identifies the requirements for the application of MFN treatment and ex-amines in which tax treaty provisions it is possible to apply MFN treatment. The ECJ, has in its case law, concluded that the application of tax treaties must be exer-cised in accordance EC law. It can be argued that a well-functioning internal market cannot allow bilateral tax treaties to provide preferential tax treatment to residents of one Member State, while denying it to residents of the remaining Member States. However, the application of MFN treatment could have far-reaching ramifications on the Member States’ existing tax treaty network. It is therefore fair to assume, as has been stated in other doctrinal opinions, that the ECJ will approach this issue care-fully when providing its interpretation on the matter.

<p>This thesis examines whether the fundamental freedoms of the EC Treaty prescribe most-favoured-nation (MFN) treatment. The right to MFN treatment concerns the issue whether taxpayers resident in one Member State can “cherry-pick” the most beneficial tax treaty available to other taxpayers. Two issues of fundamental impor-tance are examined in this thesis. First, whether a resident of a Member State (A) who receives income in another Member State (B), can claim from that state, the most beneficial tax treaty available to a resident of a third Member State (C). Second, whether a resident can claim from his state of residence (A), the same tax treatment as provided in a tax treaty concluded by his state of residence and another Member State (C), when this tax treaty provides better treatment in terms of avoiding double taxa-tion in the state of residence than the tax treaty applicable to the source of income (B).</p><p>The ECJ has held that discrimination arises only through the application of different rules to comparable situations or the application of the same rule to different situa-tions. The current state of EC law prohibits unequal treatment of residents and non-residents as well as residents who have exercised their rights to free movement in comparison to residents who have not. The condition is that they must be considered to be in comparable situations and that there is no objective difference to justify the difference in treatment. The ECJ has so far not ruled on the MFN issue. It is there-fore uncertain as to whether Member States are obligated to treat; 1) different non-resident taxpayers equally and, 2) whether Member States are prohibited from treat-ing their own residents differently when they exercise their rights to free movement in different Member States.</p><p>This thesis identifies the requirements for the application of MFN treatment and ex-amines in which tax treaty provisions it is possible to apply MFN treatment. The ECJ, has in its case law, concluded that the application of tax treaties must be exer-cised in accordance EC law. It can be argued that a well-functioning internal market cannot allow bilateral tax treaties to provide preferential tax treatment to residents of one Member State, while denying it to residents of the remaining Member States. However, the application of MFN treatment could have far-reaching ramifications on the Member States’ existing tax treaty network. It is therefore fair to assume, as has been stated in other doctrinal opinions, that the ECJ will approach this issue care-fully when providing its interpretation on the matter.</p>

I uppsatsen utreds de svenska personaloptionsreglernas förenlighet med EG-rätten. I 10 kap. 11 § 2 st. 2 p. IL framgår att då en i Sverige obegränsat skattskyldig person upphör att vara bosatt eller att stadigvarande vistas i Sverige likställs flytten med att personaloptionen utnyttjas och skall därför beskattas. Beskattning sker av ännu inte realiserade tillgångar med anledning av utflyttningen. Den typen av beskattning som följer av personaloptionsreglerna är ett exempel på en så kallad exit-skatt. Första steget i utredningen består i att bestämma huruvida personaloptionsreglerna kan utgöra ett otillåtet hinder för den fria rörligheten för arbetstagare och kapital inom unionen. Då hindret uppställs av hemvistlandet är det enligt vår terminologi att ses som ett hemstatshinder då det kan avskräcka landets medborgare eller bosatta från att utnyttja rätten till fri rörlighet. Vi har kommit till slutsatsen att de svenska personaloptionsreglerna utgör ett otillåtet hemstatshinder för den fria rörligheten för arbetstagare och kapital. Andra steget utgörs av att utreda huruvida de svenska personaloptionsreglerna kan rättfärdigas genom fördraget eller rule of reason-testet. Vad det gäller fördragets bestämmelser om avsteg från principen om fri rörlighet i artiklarna 39 och 58 EG anser vi inte att dessa kan berättiga exit-skatt-bestämmelsen i personaloptionsreglerna. Under rule of reason-testet prövas rättfärdigandegrunderna skattesystemets inre sammanhang, effektiv skattekontroll och behovet av att förhindra skatteflykt i förhållande till personaloptionsreglerna. Med hänsyn till praxis från EGD och analysen i uppsatsen synes personaloptionsreglerna inte kunna rättfärdigas genom dessa. Då vi anser att bestämmelsen i 10 kap. 11 § 2 st. 2 p. IL inte kan berättigas vare sig genom fördraget eller rule of reason-testet utgör regeln således ett otillåtet hemstatshinder för den fria rörligheten för arbetstagare och kapital. Konsekvensen av att ett hinder anses otillåtet är att regeln inte får tillämpas av medlemsstaten. / The aim of the thesis is to analyse the Swedish employee stock option legislation’s compliance with EC law. Chapter 10 section 11 subsection 2 of the Swedish income tax act states that when a person subject to unlimited tax liability ceases to be domiciled or permanently resident in Sweden, the change of residence is deemed equal to the redemption of the employee stock options and shall therefore be taxed. Due to the emigration, not yet realized assets are taxed. The kind of taxation present in the Swedish employee stock option legislation is an example of an exit tax. The first part of our analysis consists of determining whether the Swedish employee stock option legislation may constitute an unlawful obstacle for the free movement of workers and capital within the internal market. According to our terminology, an obstacle put up by the home state, capable of deterring citizens or residents of that country from exercising their right to free movement is considered a home state obstacle. We have reached the conclusion that the Swedish employee stock option legislation constitutes an unlawful home state obstacle for the free movement of workers and capital. The second part of this study consists of investigating whether the Swedish employee stock option legislation can be justified under the EC treaty or under the rule of reason test. Concerning the possibilities stated in articles 39 and 58 EC to depart from the principle of free movement, we would like to suggest that the exit taxation provision found in the Swedish employee stock option legislation cannot be justified through neither of them. The rule of reason justification grounds coherence of the tax system, effectiveness of fiscal supervision and the need to prevent tax avoidance are tried in relation to the Swedish employee stock option legislation. By reference to case law from the ECJ and the analysis in the thesis, none of the three seems to be able to justify the Swedish employee stock option legislation. The Swedish employee stock option legislation cannot, according to our analysis, be justified neither through the treaty nor the rule of reason test. In our opinion, it therefore constitutes an unlawful home state obstacle for the free movement of workers and capital. The consequence of an unlawful obstacle is that the member state may not apply that rule.

In June 2012, the Supreme Court of the United States decided the fate of the Patient Protection and Affordable Care Act in a case called National Federation of Independent Business v. Sebelius. While initially the decision seemed favorable to supporters of the bill, Chief Justice Roberts’ majority opinion could likely render the bill ineffective in implementation and it creates more Constitutionally confusing precedent than it resolves. Among the questions that now rise to the surface are: will Congress be able to raise the tax to a level where it will become effective? What is now mandatory for states to adopt into their Medicaid programs? Where is the line for the federal government with regards to coercion? What are the definitions of direct and indirect taxes? And, how binding is the Origination Clause of the Constitution?

On July 1 2010 new rules regarding cross-border group deductions came into force in Sweden. The rules are based on a series of judgements which were delivered by the Court of Justice of the European Union and subsequent rulings deriving from the Swedish Supreme Administrative Court. The new set of rules is supposed to make the Swedish group consolidation system in line with EU law in the area of cross-border group consolidations. The new rules allow a resident parent to deduct the losses stemming from its non-resident subsidiary but only if the subsidiary has exhausted all the possibilities to take those losses into account in its own state of origin and the losses cannot be utilized in the future by the subsidiary or a third party. Furthermore, the non-resident subsidiary needs to be liquidated for the parent to be able to show that the possibilities have been exhausted. However, before even considering whether the subsidiary has exhausted the losses there is one criterion that need to be fulfilled; the criterion of a wholly owned subsidiary. The criterion of a wholly owned subsidiary requires a resident parent to directly own its non-resident subsidiary without any intermediate companies and that shareholding must correspond to more than 90 percent. It is the requirement of a direct shareholding which post a concern to whether that criterion can be seen as in compliance with the case-law stemming from The Court of Justice of the European Union and the Swedish Supreme Administrative Court. After revising and analysing the case-law stemming from the Court of Justice and the Swedish Supreme Administrative Court it is the author’s belief that the criterion of a wholly owned subsidiary, due to the requirement of a direct shareholding, is not in conformity with EU law and cannot be justified by the justification grounds put forward by the Swedish government.

<p>I uppsatsen utreds de svenska personaloptionsreglernas förenlighet med EG-rätten. I 10 kap. 11 § 2 st. 2 p. IL framgår att då en i Sverige obegränsat skattskyldig person upphör att vara bosatt eller att stadigvarande vistas i Sverige likställs flytten med att personaloptionen utnyttjas och skall därför beskattas. Beskattning sker av ännu inte realiserade tillgångar med anledning av utflyttningen. Den typen av beskattning som följer av personaloptionsreglerna är ett exempel på en så kallad exit-skatt.</p><p>Första steget i utredningen består i att bestämma huruvida personaloptionsreglerna kan utgöra ett otillåtet hinder för den fria rörligheten för arbetstagare och kapital inom unionen. Då hindret uppställs av hemvistlandet är det enligt vår terminologi att ses som ett hemstatshinder då det kan avskräcka landets medborgare eller bosatta från att utnyttja rätten till fri rörlighet. Vi har kommit till slutsatsen att de svenska personaloptionsreglerna utgör ett otillåtet hemstatshinder för den fria rörligheten för arbetstagare och kapital.</p><p>Andra steget utgörs av att utreda huruvida de svenska personaloptionsreglerna kan rättfärdigas genom fördraget eller rule of reason-testet. Vad det gäller fördragets bestämmelser om avsteg från principen om fri rörlighet i artiklarna 39 och 58 EG anser vi inte att dessa kan berättiga exit-skatt-bestämmelsen i personaloptionsreglerna. Under rule of reason-testet prövas rättfärdigandegrunderna skattesystemets inre sammanhang, effektiv skattekontroll och behovet av att förhindra skatteflykt i förhållande till personaloptionsreglerna. Med hänsyn till praxis från EGD och analysen i uppsatsen synes personaloptionsreglerna inte kunna rättfärdigas genom dessa.</p><p>Då vi anser att bestämmelsen i 10 kap. 11 § 2 st. 2 p. IL inte kan berättigas vare sig genom fördraget eller rule of reason-testet utgör regeln således ett otillåtet hemstatshinder för den fria rörligheten för arbetstagare och kapital. Konsekvensen av att ett hinder anses otillåtet är att regeln inte får tillämpas av medlemsstaten.</p> / <p>The aim of the thesis is to analyse the Swedish employee stock option legislation’s compliance with EC law. Chapter 10 section 11 subsection 2 of the Swedish income tax act states that when a person subject to unlimited tax liability ceases to be domiciled or permanently resident in Sweden, the change of residence is deemed equal to the redemption of the employee stock options and shall therefore be taxed. Due to the emigration, not yet realized assets are taxed. The kind of taxation present in the Swedish employee stock option legislation is an example of an exit tax.</p><p>The first part of our analysis consists of determining whether the Swedish employee stock option legislation may constitute an unlawful obstacle for the free movement of workers and capital within the internal market. According to our terminology, an obstacle put up by the home state, capable of deterring citizens or residents of that country from exercising their right to free movement is considered a home state obstacle. We have reached the conclusion that the Swedish employee stock option legislation constitutes an unlawful home state obstacle for the free movement of workers and capital.</p><p>The second part of this study consists of investigating whether the Swedish employee stock option legislation can be justified under the EC treaty or under the rule of reason test. Concerning the possibilities stated in articles 39 and 58 EC to depart from the principle of free movement, we would like to suggest that the exit taxation provision found in the Swedish employee stock option legislation cannot be justified through neither of them. The rule of reason justification grounds coherence of the tax system, effectiveness of fiscal supervision and the need to prevent tax avoidance are tried in relation to the Swedish employee stock option legislation. By reference to case law from the ECJ and the analysis in the thesis, none of the three seems to be able to justify the Swedish employee stock option legislation.</p><p>The Swedish employee stock option legislation cannot, according to our analysis, be justified neither through the treaty nor the rule of reason test. In our opinion, it therefore constitutes an unlawful home state obstacle for the free movement of workers and capital. The consequence of an unlawful obstacle is that the member state may not apply that rule.</p>