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Category: General Anti-Avoidance Doctrines

General anti-avoidance doctrines are judicially developed, non-statutory anti-avoidance principles countering transactions or arrangements lacking commercial substance set up with the primary or sole purpose of avoiding/evading tax. Examples are the “fraus legis” principle, the Norwegian principle of “gjennemskjaering” and the French principle of “abnormal act of management”.

Norway vs. IKEA Handel og Ejendom, October 2016, HRD 2016-722

In 2007, IKEA reorganised its property portfolio in Norway so that the properties were demerged from the Norwegian parent company and placed in new, separate companies. The shares in these companies were placed in a newly established property company, and the shares in this company were in turn sold to the original parent company, which then became an indirect owner of the same properties. The last acquisition was funded through an inter-company loan. Based on […]

Norway vs. ConocoPhillips, October 2016, Supreme Court HR-2016-988-A, (case no. 2015/1044)

In this case a tax assessments based on anti-avoidance doctrine “gjennomskjæring” were set aside. The case dealt with the benefits of a multi-currency cash pool arrangement. The court held that the decisive question was whether the allocation of the benefits was done at arm’s length. The court dismissed the argument that the benefits should accure to the parent company as only common control between the parties which should be disregarded. The other circumstances regarding the actual transaction should be recognized when pricing the […]

France vs. Rottapharm, Jan 2015, CE No 369214

In the Rottapharm case The French “abnormal management action” principle was invoked. The Court overruled the decision of the tax administration under the principle of non-intervention, which prevents the tax administration from getting involved in company management. The fact that an advertising campaign costs more than the usual amount spent by the majority of companies in the same business area for similar products does not prove that the advertising campaign is an abnormal management action. […]

France vs. SOCIETE D’ACQUISITIONS IMMOBILIERES, Jan 2010, CE, No. 313868

In the Société d’acquisitions immobilières case the interest rate charged to a subsidiary was considered comparable with the interest rate the French entity would receive from a third party bank for an investment similar in terms and risk. The Court decided that the cash advance granted by a sub-subsidiary to its ultimate parent with which it had no business relations could constitute an “abnormal act of management” if the amount lent is clearly disproportionate to […]