Diskriminacijos pilietybės pagrindu samprata: lyginamoji tarptautinės mokesčių teisės ir Europos Bendrijos teisės analizė

Abstract

The principle of non-discrimination on the grounds of nationality declares that all laws shall be applied equally to all persons irrespective of their nationality. In this article the author draws the attention to the far-reaching interpretations of this principle in the context of direct taxation.
Almost all bilateral treaties on avoidance of international double taxation contain the provisions on non-discrimination. The principle of non-discrimination is also declared in the Treaty Establishing the European Community. Between EC law and the tax treaty law there are a lot of similarities but also a lot of differences in this regard. On the one hand, both the tax treaty law and the EC law prohibit the discrimination of the tax payers on the basis of the their nationality. But on the other hand, the tax treaty law in all cases “tolerates” the application of different taxation rules with respect to the resident and non-resident, whereas such differentiation in some cases may constitute an illegal discrimination or illegal restriction under the EC law. The idea of the article is to have a closer look on the respective provisions of the double tax treaties and the EC law, to explain the similarities and differences of these laws and to analyse their impact on domestic tax law.
One of the main problems arising from the different understanding of the principle of non-discrimination in the tax treaty law and in the EC law is that the EC law “destroys” the traditional and long-standing concepts of international and national direct taxation. The direct tax systems of almost all countries are based on the differentiation between resident and non-resident, therefore the application of different tax regime with respect to these two categories of taxpayers has always been understandable. However, the EC law shakes this very founding principle of direct taxation and establishes the “revolutionary” rule: the application of different tax rules to resident and non-resident is illegal, unless there exist certain conditions which justify such differentiation of the tax payers. In this article the author is trying to find out which are those crucial conditions that make such differentiation possible and legal under the EC tax law.
The existing conflict between the tax treaty law and the EC law could lead to very far-reaching results. The EC law is a primary law that has a priority over the national tax law and even the tax treaty law. Thus, not only the national tax laws, but also the double tax treaties concluded by the EC Member States shall be in accordance with the principle of non-discrimination, as it is understood in the EC law. The recent jurisprudence of the European Court of Justice (ECJ) has showed some signals, which suggest the lawmakers to review and to re-evaluate the entire system of national and international direct taxation. In certain cases the EC Member States have even been forced not to apply its double tax treaty concluded with other countries so that the residents and non-residents of that EC Member State would have equal opportunities to employ the benefits offered by that double tax treaty. Such an aggressive intrusion of the ECJ into the area of national and international double taxation by some of the commentators has been called as “very shocking and very dangerous”; and the ECJ, because of its “dangerous” rulings, by other commentators was even compared to a “bull in a china shop”. Therefore the author in his article is trying to explain to readers where this “bull” is coming from and how dangerous it could be to the Lithuanian direct tax system.