Economic Substance Around the World American Bar Association – Section of Taxation May 2004 Meeting - Washington, D.C. Joint Session Saturday, May 8, 2004 - 8:30 – 11:30 a.m. Panel topic: Economic substance around the world; a review of recent anti-avoidance jurisprudence in the US, the EU and Canada; an important session for cross-border tax planning. Speakers: Tom Akin (Canada), McCarthy Tetrault, LLP, Toronto, 416 601 7934,
[email protected] Oliver Dörfler (Germany), Haarmann Hemmelrath, Frankfurt, +49 69 920 59-255
[email protected] Werner Heyvaert (Chair/Belgium), NautaDutilh, Brussels, +32 2 566 8612,
[email protected] Michael McGowan (UK), Shearman & Sterling, London, +44 20 7655-5083,
[email protected] Gonzalo Rodés Vilà (Spain), Rodes y Sala, Barcelona, +34 932 413 740,
[email protected] Stanley Ruchelman (US), The Ruchelman Law Firm, New York, 212 843 8822,
[email protected] 1 Belgium By Werner Heyvaert1 1. Introduction This presentation focuses first on the legislative aspects of economic substance in Belgian tax law, mainly direct (income) tax rather than indirect tax (such as VAT). Next, we highlight those rare provisions in the tax code that embody the Belgian legislature's desire to align tax treatment with economic substance, the most salient being those pertaining to financial leasing operations. We then provide a brief overview of the anti-abuse provisions in the tax law that allow the authorities to disregard the form of certain legal structures or constructions and levy tax in accordance with the substance of a transaction. After this brief report on economic substance, we summarize a number of landmark cases dealing with the issue of substance over form.