The General anti-tax avoidance measure in the times of tax planning

According to The Economist, mergers and acquisitions boomed in 2015 – $5.5 trillion-worth transactions were announced worldwide. The operations of reorganizations and transfers were also in the centre of attention in Lithuania in 2015 as Vilniaus Prekyba – the biggest retailer in Lithuania – was stationed in a scandal of alleged tax avoidance, where the mentioned operations were said to be employed to avoid taxes in Lithuania. Having no intent to provide any judgements, one has to admit that in the latter times of tax planning tax authorities may lack tools to distinguish when legitimate tax planning turns into illegal tax avoidance. For example, the general tax anti avoidance measure stipulated in the Law on Tax Administration of the Republic of Lithuania defines tax avoidance as a transaction, an economic operation or any combination thereof concluded to gain a tax benefit […]. According the Council Directive 2009/133/EC on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States the said operations are neutral for corporate income tax purposes (in the contrary to, for example, sale – purchase agreements). A literal interpretation of the mentioned Substance over Form Principle might lead to a conclusion that reorganization or transfer gives itself a ground to apply anti avoidance measure. Or that there is a ground to apply anti-avoidance measure when the said operations are employed in order to shift business into a low-tax regime. Are such conclusions correct? The paper addresses problematic aspects of the application of the Substance over Form Principle in the cases of international reorganizations and transfers. As well as provides an opinion whether specific measures, for example, the Article 15 of the said Directive – means against tax avoidance – should be implemented in Lithuania