Nueva cláusula anti-abuso de la LIS 27/2014 en la tributación de dividendos y plusvalíasEnfoque desde la lucha internacional contra las prácticas abusivas: Vulneración del Derecho comunitario

Resumen

Act 2 Act 27/2014, of November 27th, on the Spanish Corporate Tax has introduced important changes to the regulation related with the avoidance of economic double taxation. Some of those measures have been taken with the main purpose of preventing aggressive tax planning. However, in many cases, the regulation of those new measures raises questions about the correct application and, moreover, serious doubts as to its compatibility with Community law. In particular, this article focuses its analysis on the new additional requirement of indirect participation that the Spanish tax payer needs to comply with when dividends or gains are obtained through holding companies (21.1 a) and 32.3 Act CT). For this purpose, we begin analyzing the anti-abuse aim of this new measure that denies avoidance of economic double taxation (art. 21.1 a) y 32.3 LIS). Then, it raises questions about the compatibility with the Community law (parent-subsidiary Directive and Treaty´s freedom of establishment). Finally, it suggests a new drafting