The thesis presents the results of studying the problems of legal regulation of tax planning in Ukraine. An overall study of the nature and the origin of tax planning has been carried out. On the basis of the analysis and comparison of the categories «legitimate interest» and «subjective law» it is established that tax planning is the right of individuals, but not their legitimate interest. It is emphasized that the recognition of tax planning as a taxable entity is an important aspect in determining the nature of such planning. First of all, it reduces the level of arbitrary behavior by the controlling authorities.
Tax planning is characterized as a compromise between private and public interests. Among the structural elements of the tax law system, tax planning is defined as an institution of law. A distinction is drawn between such concepts as «planning», «optimization», «minimization», «tax management», «financial management», on the basis of which it is summarized that a) the term «planning» combines the term «optimization» and indirectly – «minimization»; 2) the term «management» is closer to the term «administration»; c) in the context of taxpayer activities aimed at the lawful reducing of their tax liability, it is most appropriate to use the term «tax planning».
Scientific approaches to the definition of the term «tax planning» are analyzed, on the basis of which the author's definition of this concept is formulated. Tax planning at work is defined as the activity of a taxpayers, aimed at the developing of a strategy and further adherence to reduce the amount of tax obligations to achieve their own business purpose, using methods not prohibited by law, without violating the requirements of domestic and international tax law.
There are other ways to reduce tax compliance by a taxpayer comparing with tax planning. It is stated that, unlike the latter, the related concepts are illegal. Based on the research of scientific approaches to tax planning, the practice of its application, the author distinguishes such related but not identical concepts as «tax evasion», «aggressive tax planning». The main directions of practical implementation of tax planning are identified. Emphasis is placed on the following ways of reducing tax liability, such as: (a) attracting specific entities that have a lower tax burden than the taxpayer's standard tax liability; (b) the organization of the payment dividends payment; (c) the specific organization of the beneficial owner.
Particular attention is paid to transfer pricing within tax planning. The role and problems of multinational corporations in tax consequences are outlined. Attention is paid to the characterization of the nature, essence and meaning of «arm's length principle». It is noted that the practical aspects of establishing of the «arm's length principle» in the tax legislation of Ukraine are not clearly defined. The declarative nature of the individual provisions of Art. 39 of the Tax Code of Ukraine. A comparative analysis of the Ukrainian and international tax law concerning the regulation of transfer pricing has been made, on the basis of which the recommendations have been formulated as to the appropriateness of amending the Ukrainian tax legislation.
In view of the practice of substantive and procedural law, the category «abuse of rights». Prospective ways of counteracting the abuse of rights have been characterized, and proposals have been made to amend the Tax Code of Ukraine.
It is established that one of the most effective ways of preventing tax disputes is the functioning of a preliminary ruling institute, which in the world practice is often referred to as a fiscal script (rescript fiscal). The implications of such an institute, covering tax consultations and concluding agreements between the taxpayer and the controlling authority, have been investigated. Prospective directions of improvement of the institute of preliminary decision in Ukraine are determined.
They identified a critical analysis of four of the fifteen BEPS measures, which is the minimum BEPS package Ukraine has undertaken to implement in tax law. It is summarized that such implementation will have a positive impact on the tax legislation of Ukraine, in particular, on tax planning.
The important role of legal doctrines in resolving tax planning disputes is highlighted. The description of such legal doctrines as business purpose, the advantage of the essence over the form, «step by step agreement». Significant shortcomings of these doctrines are indicated. The effective legislative instruments for resolving tax planning disputes existing in the tax law of the Romano-German legal family are investigated, namely the nature, nature and practice of applying general anti-tax (GAAR) rules and special rules are analyzed against tax evasion (SAAR). It is concluded that such norms should be enshrined in the tax legislation of Ukraine.
