Tax Avoidance, the 'Balanced Allocation of Taxing Powers' and the Arm's Length Standard : An Odd Threesome in Need of Clarification

The ECJ doctrine links the justification of tax avoidance to the balanced allocation of tax powers and the arm’s length standard. This link poses a number of new issues, among other, these three questions: what notion of “arm’s length standard” is the ECJ dealing with; can there be a permanent link between the “arm’s length standard” and tax avoidance; and: is the balanced allocation of tax powers not a previous issue? Furthermore, old issues remain to a certain extent unresolved: (i) Is there one anti-avoidance doctrine? (ii) what is that doctrine based on? Is it based on (a) the notion of artificiality (not just sham transactions) and economic substance? (b) is there an asymmetric application of the doctrine depending on whether or not the area to which it intends to be applied has been harmonized; (c) is it based or departs from a given allocation of tax powers. Finally (iii) what consequences on the internal law of Member States does the case law have? especially considering different scenarios: (a) when there is no anti-avoidance rule; (b) when there is a General anti-avoidance rule or judicial doctrine; (c) when there is a Targeted anti-avoidance rule and (d) whether such a rule is independent, harmonized, or based on a DTC