The quote of the famous Benjamin Franklin (1789) »In this world nothing can be said to be certain, except death and taxes.« unquestionably seems convincing; however, it does not say that these two things fundamentally differ from one another. Namely while death cannot be avoided, taxes can be mitigated in several ways. This is exactly what taxpayers do, both legally and as well as in an unlawful manner.
No legislation can regulate all concrete cases, which a taxation can bring. Measures for limiting tax mitigation are increasing on EU as well as national legislation level. Considering all recent publicly known tax affairs, it seems that the taxpayers have currently been more and more striving to avoid the laws, which are currently over-regulated. The reason for this situation could be numerous vague and indefinite legal measures in the field of tax mitigation. The solution may, however, be very well found in simple, clear and specific legal measures against tax mitigation.
In Germany, it is possible to notice many positions of theoreticians in the field of taxes, which argue that the taxpayers have the »right« to discretionally choose an adequate legal framework. And if the consequence of such legal framework is the possibility to avoid payment of taxes, the legislator is the only culprit who bears the burden of poor regulation. Of course, this is not always the case; nevertheless, the position of German theoreticians in this field is quite different from the one of Slovenian theoreticians.
Tax mitigation may not always be illicit, aggressive and unwanted. To some extent, this is a normal and even requested anomaly. The purpose of this work is not to demonstrate how immoral tax mitigation is. It is more of a comparison of the under-regulated and from a theoretical perspective poorly developed institute of tax mitigation institution in Slovenia, viewed from case-law and theory of very ample institute in Germany.
Both legislators are enforcing new measures against tax mitigation. Yet the difference is that the Slovenian legislator merely follows the EU measures (which »mandatorily« must be respected in the national law), while the German legislator also focuses on establishing new national measures against tax mitigation, which arise with monitoring the progress of tax and judicial authorities' jurisprudence, all in addition to EU measures. By doing so, both legislators should be aware that new and increasingly complexed measures against tax mitigation, taxpayers and taxpayers’ advisers, often reveal additional and even more creative ways of implementing tax mitigation. The Slovenian legislator should focus more thoroughly on revision and amendments to national regulation of tax mitigation, priory and in addition to EU measures, whereas the German legislator ought to be more cautious with establishing new regulations, since many national tax rules are questionable with regard to compliance with EU law.
|
