The Judicial Concept of Tax Avoidance in Switzerland

This doctoral dissertation presented to the Faculty of Law of the University of Fribourg offers a detailed and critical analysis of Switzerland’s judicial concept of tax avoid-ance both in a context of domestic law (Part 1) and in matters of double taxation conven-tions (Part 2). The present study demon-strates that the approach taken by the Swiss Federal Court in the Denmark-case - in which it decided that, in cases of treaty abuse, the benefits of double taxation conventions could be denied even in the absence of express anti-abuse provisions, based on the unwritten prohibition of abuse of rights that is inherent in tax treaties - is heavily influenced by its national concept of tax avoidance pursuant to which tax is imposed even though the requirements of the relevant tax provision are not formally met. Further-more, this thesis rejects the subjective condition (purpose test) as applied by the Federal Court in its national tax avoidance formula and in situations involving treaty abuse.