The Judical Concept of Tax Avoidance in Switzerland

Iris Reardon-Kofmel

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This doctoral dissertation presented to the Faculty of Law of the University of Fribourg offers a detailed and critical analysis o...

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This doctoral dissertation presented to the Faculty of Law of the University of Fribourg offers a detailed and critical analysis of Switzerland's judicial concept of tax avoid-ance both in a context of domestic law (Part 1) and in matters of double taxation conven-tions (Part 2). The present study demon-strates that the approach taken by the Swiss Federal Court in the Denmark-case in which it decided that, in cases of treaty abuse, the benefits of double taxation conventions could be denied even in the absence of express anti-abuse provisions, based on the unwritten prohibition of abuse of rights that is inherent in tax treaties is heavily influenced by its national concept of tax avoidance pursuant to which tax is imposed even though the requirements of the relevant tax provision are not formally met. Further-more, this thesis rejects the subjective condition (purpose test) as applied by the Federal Court in its national tax avoidance formula and in situations involving treaty abuse.