Sample Solution

improperly or fraudulently taking advantage of provisions of Community law”.

Thus, abuse of law is illegitimate from the instrument point of view. Here, a person improperly uses a legal tool (often a fundamental freedom) with the aim of avoiding national tax measures. Abuse of rights on the other hand is illegitimate from the result point of view; while seemingly legal, the result would be a tax reduction, which is not.

5 Applying abuse of law to VAT: Halifax
5.1.1 Refining the subjective element
The subjective element alluded to in Emsland Stärke has been refined further by Halifax. According to Pistone, Halifax is regarded as the landmark decision on abuse for value-added tax (VAT) purposes. Among these is the fact the Court defined abuse in this area as a circumvention of tax rules through transactions, essentially driven by tax reasons. Secondly, Halifax also confirmed the previous case law on tax avoidance; it underlined that the existence of objective factors was sufficient for the existence of abusive practices.

5.1.2 “Artificiality” and “purpose”
Halifax concerned a banking company who established call centres for its business. Instead of recovering only 5% of the VAT paid on construction works, Halifax set up a scheme which enabled it to recoup the full amount of VAT incurred through various transactions involving different companies in the Halifax group.

The main issue which needed clarification was essentially: “Has the person performing a transactio