Peter Koerver Schmidt Assistant Professor CBS, Law Department. Publication List

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Publication List

32)

Taxation of Income in Foreign Trusts – Denmark Introduces a New Anti-Avoidance Rule Targeting the Use of Foreign Trusts

 Type: Scientific article in journal, level 2 (Danish Bibliometric Research Indicator)  Journal: Intertax, 2016, vol. 44, issue 2, p. 185-191.

 Publisher: Kluwer Law International, Alphen aan den Rijn

 Summary: The article analyses Sec. 16 K of the Danish Tax Assessment Act, which entails that a Danish settlor of a foreign trust under certain circumstances has to include the trust’s income in his/her own taxable income. Based on an analysis of the provision’s scope and legal effects it is concluded that the provision to some extend succeed in its purpose. However, it is also pointed out that the scope of the provision is not sufficiently precise, and it is questioned whether the purpose could have been reached by other and more expedient means.

31)

Retssikkerhed og omgåelse i skatteretten – Den evige diskussion om forudberegnelighed contra bekæmpelse af misbrug

 Type: Scientific article in anthology, level 1 (Danish Bibliometric Research Indicator)  Title of the anthology: Den evige udfordring – omgåelse og misbrug i skatteretten –

Festskrift i anledning af 50 års jubilæet for Dansk Skattevidenskabelig Forening  Publisher: Ex Tuto Publishing

 Editors: Jakob Bundgaard, Dennis Ramsdal Jensen, Niels Winther-Sørensen  Publication year: 2015

 Co-author: Jane Bolander  Contribution: pp. 23-52

 Summary: The contribution discusses how to balance the need of legal certainty for tax payers versus the need to counter tax avoidance is a difficult question. Specific focus is on the tax payers’ possibility to predetermine the tax consequences of their actions. Firstly, a closer look is taken at the fundamental meaning of the concept legal certainty, and a number of issues of special interest for tax law is discussed. In connection to this the debate about legal certainty in Danish tax law is outlined. Secondly, a number of recent legislative initiatives and court decisions concerning tax avoidance are analyzed from the perspective of legal certainty. Finally, it is concluded that the fight against tax avoidance currently seems to trump the need to protect tax payers’ legal certainty.

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Den skatteretlige behandling af stiftere af trusts – En analyse af ligningslovens § 16 K  Type: Scientific article in anthology, level 1 (Danish Bibliometric Research Indicator)  Title of the anthology: CBS Law Anthology 2015

 Publisher: Jurist- og Økonomforbundets Forlag

 Editors: Peter Arnt Nielsen, Peter Koerver Schmidt and Katja Dyppel Weber  Publication year: 2015

 Contribution: pp. 291-306

 Summary: See summary under publication no. 32. This contribution constitutes a “working paper” in Danish, on which publication no. 32 is based.

29)

Når multinationale selskaber skal betale en fair andel i skat – en balanceakt i krydsfeltet mellem skatteret og corporate social responsibility

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Tidsskrift for Skatter og Afgifter (TfS 2015, 238 – pp. 1655-1665)

 Publisher: Karnov Group

 Summary: The article takes a closer look at the current debate concerning fair taxation of multinational enterprises (MNEs). It is argued that the concept aggressive tax planning is not a settled legal concept but a rather unclear policy concept. Moreover, it is argued that the uncertainty surrounding the concept and the lack of concrete guidelines entail that MNEs have to set standards for themselves with respect to international tax planning. In this respect the article concludes that elements from the corporate social responsibility discipline may provide useful guidance.

28)

Ensretning i den internationale skatteret – Om muligheden for indførelse af CCCTB i lyset af Luxleaks

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Tidsskrift for international beskatning – Skat Udland (SU 2015, 38 – pp. 75-82)  Publisher: Karnov Group

 Co-author: Jakob Bundgaard

 Summary: The article discusses a number of legislative and political tendencies that

seem to have brought along increased alignment of national corporate tax regimes. Accordingly, it is argued that the states’ room for maneuver currently is under growing pressure when it comes to the design corporate tax legislation. The conclusion is based on an analysis of a number of initiatives from the OECD and the European Commission.

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Immaterialretlig crossover  Type: Book (other)

 Publisher: Gads Forlag/Gjellerup  Publication year: 2015

 Co-authors: Jakob Bundgaard

 Editor: Bjørn von Ryberg, Christian Kragelund, Martin Lavesen  Contribution: Chapter 4 and 5 (p. 85-132 and 133-156)

 Summary: Chapter 4 contains an analysis of the consequences in Danish tax law with respect to transfer, amortization and licensing of intellectual property (IP). Special attention is devoted to intra-group transfers and mitigation of international tax planning. Chapter 5 deals with the rules on Danish withholding tax on royalties. Moreover, the relevant rules with respect to international double taxation, tax treaties and the Interest and Royalty Directive are explained.

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International Skatteret – I et dansk perspektiv  Type: Text book (other)

 Publisher: Hans Reitzels Forlag  Publication year: 2015

 Co-authors: Katja Dyppel, Michael Tell)

 Contribution: Chapter 1, 6, 8 and 11 as well as section 1, 2, 2.2, 3.4, 3.5 and 3.6 in chapter 2.

 Summary: The book aims at students following an elective course on international taxation. It covers all the fundamental areas of international tax law seen from a Danish perspective, including the rules on full and limited liability to tax, tax treaties, EU tax law and anti-avoidance legislation. Moreover, the book also discusses issues related to tax planning and tax risk management. Multiple illustrations, examples, tables and case resumes are provided in order to enhance the understanding. Every chapter contains “test yourself questions” and cases.

25)

Øvrige værnsreglers betydning ved dansk CFC-beskatning

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: SR-Skat (2014, issue 5, pp. 255-260)

 Summary: The article analyses whether specific anti-avoidance provisions under Danish law are applicable when assessing the conditions for Danish taxation of controlled foreign companies (CFC-taxation) and when calculating the income to be attributed to

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the Danish parent company. In this regard the decision made by the Danish Tax Assessment Council in SKM2014.577.SR is discussed.

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Corporate Taxation and the International Challenge

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Nordic Tax Journal (2014, vol. 2, issue 2, pp. 113-131)

 Publisher: Djøf Forlag / De Gruyter Open

 Summary: It is argued that the higher degree of economic integration across borders and the international trend towards a reduction of corporate income tax rates have had a significant impact on the Danish corporate tax regime in recent years. Accordingly, the Danish statutory corporate tax rate has been lowered, while several government actions at the same time have been taken in order to combat international tax avoidance and evasion. However, the article concludes that the enacted anti-avoidance provisions often suffer from being quite complex, very broad in scope and open to criticism from an EU law perspective.

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Definitionen af CFC-indkomst og adgangen til dispensation – en kommentar til to nyere afgørelser

 Summary: The article analyses two new administrative decisions concerning the Danish CFC rules applicable to companies. The first decision – issued by the Danish Tax Assessment Council – deals with the definition of tainted income under the CFC rules with respect to income originating from intellectual property rights. The second decision – issued by the Danish Tax Tribunal – concerns the conditions to be fulfilled in order to obtain exemption from the Danish CFC-rules. In this regard the article discusses the relatively controversial condition stating that the main part of the subsidiary’s income has to originate from business with clients in the country where the subsidiary is resident.

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Nettoprincippets betydning ved lempelsesberegning

 Co-authors: Jakob Bundgaard and Katja Dyppel Weber

 Summary: The article analyses a number of interpretive questions with respect to the "net principle" set out in Sec. 33 F of the Danish Tax Assessment Act. The provision

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concerns double taxation relief – both unilaterally or according to a tax treaties – and states that expenses which relate to the foreign-source gross income must be deducted when computing net foreign-source income.

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Are the Danish CFC Rules in Conflict with the Freedom of Establishment? – An Analysis of the Danish CFC Regime for Companies in Light of ECJ Case Law

 Type: Scientific article in journal, level 2 (Danish Bibliometric Research Indicator)  Journal: European Taxation (2014, vol. 54, no. 1, pp. 3-9)

 Publisher: International Bureau of Fiscal Documentation, Amsterdam

 Summary: Unlike other Member States, Denmark reacted to Cadbury Schweppes (C-196/04) by widening the scope of application of its CFC legislation for companies to purely domestic situations. Inspired by the BEPS Report recommendation on strengthening CFC legislation – and in light of the lack of certainty under existing ECJ case law – this article analyses whether or not the Danish CFC rules applicable to companies should be considered in line with the freedom of establishment. The article is based on research carried out in connection with the authors’ PhD thesis (see publication no. 17).

20)

Beskatning af udenlandsk passiv indkomst i koncerner

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Tidsskrift for international beskatning – Skat Udland (SU 2013, 207 – pp.

440-450)

 Publisher: Magnus Informatik, Denmark

 Summary: The article analyses the Danish rules concerning taxation of foreign passive income. Emphasis is on the Danish CFC-rules, including their relationship with EU law and tax treaties. Moreover, the article comments on the general report prepared for the 67th IFA Congress.

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Die dänischen CFC-Vorschriften für Gesellshaften und ihre Vereinbarkeit mit Gemeinshafts- und Abkommensrecht

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Internationales Steuerrecht (2013, vol.22, issue 11, pp. 417-423).

 Publisher: Verlag C.H. Beck.  Co-author Markus Schneider.

 Summary: The purpose of the article is to give a brief introduction to the Danish legislation concerning Controlled Foreign Corporations (CFC rules) and to highlight the main similarities and differences between the German and Danish CFC rules.

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Moreover, the article provides insight into the debate on whether the current Danish CFC-regime should be considered in breach of EU law and/or Denmark’s tax treaties. 18)

The Taxation of Foreign Passive Income for Groups of Companies

 Type: Scientific article in book series, level 1 (Danish Bibliometric Research Indicator)  Journal: Cahiers de droit fiscal international (2013, Vol. 98a, pp. 259-278 – IFA Branch

Report, Denmark)

 Publisher: Sdu Fiscale & Financiële Uitgivers, The Netherlands

 Summary: The branch report analyses the Danish rules concerning taxation of foreign passive income. The emphasis is on the Danish CFC-rules, including their relationship with EU law and tax treaties.

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Dansk CFC-beskatning – I et internationalt og komparativt perspektiv  Type: PhD Thesis

 Publisher: Karnov Group  Publication year: 2013  Total pages: 610

 Reviewed in: Ugeskrift for Retsvæsen (U.2014B.136/2) and Nordic Tax Journal, 2014, issue 2, pp. 228-230.

 Summary: Based on a traditional legal dogmatic method the book analyses the current Danish CFC regime for companies. The aim is to determine what should be considered valid law (de lege lata) and to provide suggestions for amendments/improvements (de lege ferenda). Moreover, the book analyses whether the Danish CFC rules should be considered in breach of EU law and/or Denmark’s tax treaties. The book is based on my PhD thesis that was successfully defended in 2013. 16)

Tax Risk Management  Type: E-book (other)

 Publisher: International Bureau of Fiscal Documentation  Publication year: 2013 (updated 2014)

 Co-authors: Jakob Bundgaard, Karsten Gianelli and Katja Joo Dyppel. Mike Hammer (ed.).

 Contribution: Country chapter on Denmark (20 pages as PDF in the e-book/database).  Summary: This e-book provides a comprehensive analysis of the current tax risk management framework and its development. The Danish country chapter includes sections on tax control framework, legislative and regulatory changes, approach of tax authorities, tax risk management in a global framework and future developments.

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Danske CFC-regler og dobbeltbeskatningsoverenskomster (peer reviewed)

 Publisher: Karnov Group, Denmark

 Summary: The article analyses whether the Danish legislation conflicts with Denmark’s tax treaties and questions whether the current rules are within the accepted framework for CFC taxation set out in the commentaries to the OECD Model Tax Convention.

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Dispensation fra CFC-reglerne for selskaber (peer reviewed)

 Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Tidsskrift for international beskatning – Skat Udland (SU 2011, 486 – pp.

903-914)

 Summary: The article deals with the access to dispensation from the Danish CFC-rules for banks, insurance companies and mortgage lenders, cf. Sec. 32 (2) of the Corporation Tax Act. Based on new administrative case law it is analyzed how the conditions for obtaining a dispensation should be interpreted. Finally comparative considerations are made.

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CCCTB – Europa Kommissionens direktivforslag om en fælles selskabsskattebase  Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Revision & Regnskabsvæsen (RR 2011, issue 7, pp. 40-49)

 Publisher: Thomson Reuters, Denmark  Co-author: Jakob Bundgaard

 Summary: The article analyses the European Commission's proposal which would allow multinational companies to determine their tax base under a new set of common rules rather than under up to 27 different sets of national rules.

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En fælleseuropæisk konsolideret selskabsskattebase  Type: Article in journal (other)

 Journal: INSPI (2011, issue 7/8, pp. 6-13)  Publisher: Thomson Reuters, Denmark  Co-author: Jakob Bundgaard

 Summary: The article analyses the European Commission's proposal for a common consolidated corporate tax base in light of the principle of subsidiarity as set out in article 5 (1) and (3) in the Treaty on European Union.

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Dobbeltbeskatningsoverenskomster og skatteundgåelse – Anvendelse af værnsregler  Type: Scientific article in journal, level 1 (Danish Bibliometric Research Indicator)  Journal: Tidsskrift for international beskatning – Skat Udland (SU 2010, 253 – pp.

625-631)

 Publisher: Magnus Informatik, Denmark  Co-author: Jakob Bundgaard

 Summary: The first part analyzes Danish anti-abuse measures with an international scope, including their relationship with tax treaties. The second part deals with general and specific anti-avoidance provisions in Denmark’s tax treaties.

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Tax Treaties and Tax Avoidance – Application of Anti-Avoidance Provisions

 Type: Scientific article in book series, level 1 (Danish Bibliometric Research Indicator)

 Journal: Cahiers de droit fiscal international (2010, vol. 95a, pp. 261-279 – IFA Branch Report, Denmark)

 Publisher: Sdu Fiscale & Financiële Uitgivers, The Netherlands  Co-author: Jakob Bundgaard

 Summary: The first part of the report analyzes domestic anti-abuse measures with an international scope, including their relationship with tax treaties. The second part deals with general and specific anti-avoidance provisions in tax treaties.

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Kapitalfonde i dansk og international skatteret  Type: Book (other)

 Publisher: Ex Tuto Publishing  Publication year: 2010

 Co-authors: Jakob Bundgaard (main author and editor), Niels Winther-Sørensen, Kim David Lexner

 Contribution: Section on “investment companies”, p. 70-94, and section on “new development concerning beneficial ownership of dividends and interest”, p. 225-244.  Summary: The book contains an analysis of the main national and international tax

issues with respect to Private Equity funds. 8)

Investeringsselskaber

 Publisher: Magnus Informatik, Denmark  Co-author: Jakob Bundgaard

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 Summary: If a company should be considered an investment company the company itself is not subject to Danish taxation. Instead the taxation is directed towards the shareholders of the investment company; which will be taxed according to a mark-to-market principle. The article analyzes these rules in light of the amendments adopted by the Danish Parliament on 5 February 2009 (bill L 23).

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Værdiansættelse af unoterede aktier ved overdragelse indenfor gaveafgiftskredsen  Type: Article in legal journal

 Journal: Revision & Regnskabsvæsen (RR, 2008, issue 11, pp. 64-72)  Publisher: Thomson Reuters, Denmark

 Co-author: Per Randrup Mikkelsen

 Summary: On the basis of recent case law it is analysed how the value of unlisted shares should be assessed for (gift) tax purposes when shares are transferred between related parties. Further, the article describes the specific valuation methods used for different kinds of companies – e.g. real estate companies, holding companies, “principal shareholder companies” and newly established companies – and highlights the impact previous restructurings and changes in the ownership structure can have when assessing the value.

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En fælles EU-selskabsskattebase  Type: Article in legal journal

 Journal: Tidsskrift for international beskatning – Skat Udland (SU 2008, 47 – pp. 95-101)

 Summary: The article analyses the European Commission's plans to introduce rules which would allow multinational companies to determine their tax base under a new set of common rules rather than under up to 27 different sets of national rules. On the basis of three working papers published by the Commission the article describes the technical elements, the sharing mechanism and the administrative framework of the CCCTB.

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Immaterialret – indhold, værdiansættelse og skat  Type: Book

 Publisher: Thomson Reuters  Publication year: 2008

 Reviewed in: Ugeskrift for Retsvæsen (U.2009B.332)

 Co-writers: Lars Karnøe (editor), Lars Balslev, Jakob Bundgaard, Tinus Bang Christensen, Mikkel Gudsøe, Anders Lotterup, Mads Mortensen.

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 Contribution: Chapter on tax aspects with respect to IPR, p. 367-412.

 Summary: The book contains a comprehensive analysis of applicable Danish intellectual property law combined chapters on valuation and taxation of intellectual property rights. The chapter on taxation deal with transfer of intellectual property rights, licensing and international tax aspects.

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M&A Tax Fundamentals 2008  Type: Hand book

 Publisher: International Bureau of Fiscal Documentation  Publication year: 2008

 Editor: Anuschka Bakker

 Contribution: Chapter on Danish tax law, p. 63-72

 Summary: The book provides a comprehensive overview of tax regulation and documentation relevant to cross-border M&A activities.

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Overdragelse af aktier med skattemæssig succession – pengetankreglen  Type: Article in legal journal

 Journal: Tidsskrift for skatter og afgifter (TfS 2007, 671 – pp. 2805-2810)  Publisher: Magnus Informatik, Denmark

 Co-author: Per Randrup Mikkelsen

 Summary: In the light of a National Tax Assessment Board Decision (TfS 2007, 365) the article analyzes when and how shares can be transferred with tax wise succession, cf. Sec. 34 in the Danish Act on Taxation of Capital Gains on Sale of Shares.

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Medarbejderobligationer

 Type: Article in legal journal

 Journal: INSPI (2007, issue 3, pp. 16-19)  Publisher: Magnus Informatik, Denmark  Co-author: Søren Keller

 Summary: The article analyzes the provision on employee bonds in Sec. 7A of the Danish Tax Assessment Act that entails a favourably low taxation if the bonds are assigned to the employees as part of a general scheme open to all employees.

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Beskatning af foreninger

 Type: Article in legal journal

 Journal: IUR-Information (2005, issue 9, pp. 8-10)

 Publisher: Institut för Utländsk Rätt, Jönköbing International Business School, Sweden

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 Summary: The article deals with the Danish tax rules and case law concerning associations. Initially the article discusses the meaning of the term association with regard to distinguishing different legal entities for tax purposes. Subsequently the rules on calculation of taxable income are analyzed with an emphasis on the special provisions that entitles associations with a non-profit/social aim to deduct distributions and appropriations.