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44 Intertax 206 (2016)
Concept of Aggressive Tax Planning Launched by the OECD and the EU Commission in the BEPS Era: Redefining the Border between Legitimate and Illegitimate Tax Planning, The

handle is hein.kluwer/intrtax0044 and id is 206 raw text is: The Concept of 'Aggressive Tax Planning' Launched by the OECD and the EU Commission in the BEPS Era: Redefining the Border between Legitimate and Illegitimate Tax Planning* Jose Manuel Calder6n Carrero & Alberto Quintas Seara In recent years, the need to prevent and combat aggressive tax planning has played a key role not only in the agendas of international organizations and supranational institutions (OECD, EU, G-20, UN), but also in the agendas of national tax administrations. In this context, given the constraints and problems that result from the traditional model of enforcing tax obligations, the OECD is working towards the implementation of a complementary model of cooperative compliance, which shall be regarded as an instrument to improve voluntary tax compliance and to prevent tax fraud, tax evasion and aggressive tax planning. This piece of work addresses the fuzzy concept of aggressive tax planning in the framework of cooperative compliance programs and assesses how the 'tax paradigm' shift that is taking place at the international level (BEPS global tax reset) affects the delineation of the border between legitimate tax planning and tax avoidance, thus raising a number of issues and problems for taxpayers insofar as the redrawing of this thin red line has not been conducted in a globally uniform, transparent and consistent manner. I THE COOPERATIVE TAX COMPLIANCE MODEL AS AN INSTRUMENT TO COMBAT'TAX AVOIDANCE' AND'AGGRESSIVE TAX PLANNING' Over the last decade, the tax compliance model promoted by the OECD that uses the premise of the international experience of various national tax administrations, has gradually become a tax compliance model based on the cooperation between all the subjects involved in it (such as administration, taxpayers and tax intermediaries). The aim has been to ensure that taxpayers apply the tax system correctly with the help or assistance of the tax authorities. Therefore, this 'enhanced relationship' gives structure to a model which, based on the acceptance of those subject to the tax system, aims to achieve higher levels of voluntary compliance (not repressive) from taxpayers.1 This would result in a more effective and efficient resource allocation by the administration, as well as lower compliance costs and create greater legal certainty for the taxpayers who decide to join the new cooperative model. In terms of designing the cooperative compliance model, it could be said that the main objective of the OECD Forum on Tax Administration (OECD FTA) basically consisted of reducing the so-called tax gap establishing a set of arrangements to improve the levels of voluntary compliance, by simplifying, facilitating and reducing the costs of tax compliance for those taxpayers who adopt a cooperative stance,2 thereby superseding the traditional administrative management model. This model is typically 'repressive, static, hierarchical and bureaucratic' and has proved to be fairly unsatisfactory within a tax context that is dominated by the massive increase in volume and details of tax legislation.3 The OECD presents the enhanced relationship as an innovative tool to address the problem of non-compliance with tax regulations on an international scale, whether as a consequence of behaviour amounting to tax fraud or tax This article is part of a Research Project on 'The Reform of Corporate Taxation in the EU', funded by the Spanish Ministry of Economy and Competitiveness (Ref. DER2013-47516-P). Jos6 Manuel Calder6n Carrero, Professor of Tax Law. University of A Corufia. The author can be contacted at jose.calderon@udc.es. Alberto Quintas Seara, Research and Teaching Assistant. FPU Grant Holder from the Spanish Ministry of Education. Tax Law Department. University of A Corufia. The author can be contacted at alberto.quintas@udc.es. The benefits of this new model based on mutual trust between the tax administration and the taxpayers are analysed in B. Torgler, Tax Compliance and Tax Morale: A TheoreticalandEmpirical Analysi (Edward Elgar 2007). In turn, the OECD has recently highlighted how 85% of the tax authorities of the countries included in the Forum on Tax Administration (fifty-six countries - including all the members of the OECD, EU and G-20) have adopted cooperative compliance programmes to manage the tax risks of their large taxpayers (see OECD, Tax Administration 2015: Comparative Information on OECD and Other Advanced and Emerging Economies (OECD 2015)). 2 See R. Seer, Voluntary Compliance, 67(11) Bull. Intl Taxn 588-589 (2013). See L. Ruibal Pereira, 'Experiencia internacional sobre medidas de reorganizaci6n de las administraciones tributarias en la lucha contra el fraude fiscal', Documentoi dellnstituto de Eitudios Fiscales, no 27, 2008, p. 5. INTERTAX, Volumre 44, Issue 3 @ 20 I6 Kluwer Law International BV The Netherland 206

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