1.4.1 “Legal-dogmatic research”

In the present study, I suggest, amongst others, separate and holistic solutions to the problems of cross-border inheritances and donations by conducting a so-called “legal-dogmatic research”. As Vranken has put it, legal-dogmatic research concerns researching current positive law as laid down in written and unwritten European or (inter)national rules, principles, concepts, doctrines, case law and the literature.1 In that regard, the analysis takes place from an internal perspective: the positive law is the starting point and its sources are considered as a given. Subsequently, the idea is to improve within the legal system as it is internal consistency and coherence: systemization of legal norms and case law2 with the ultimate aim to enhance legal certainty through systemization and theory-building for citizens, companies and public authorities.3 This type of research is normally a two-art process: first, the sources of the law should be identified and second, these sources should be interpreted, analysed, systemized and confronted with each other.4

It follows that in answering the question of how to address the problems of cross-border death and gift taxation within the available international and EU mechanisms, the sources of the law that are relevant to address this question as well as their legal status first need to be identified. Without doubt, at the OECD level, the OECD IHTMTC and its Commentary are two important sources of law. The model has become a useful tool in addressing the problems of cross-border death and gift taxation and the OECD IHTMTC Commentary provides useful guidelines for states wishing to conclude an inheritance and gift treaty. Furthermore, with particular reference to the OECD IHTMTC Commentary, I observe that it reflects the principles of death and gift tax laws of the majority of the OECD member countries and therefore, I consider it an important source of (soft) law and it has been a great source of inspiration in my research. Last but not least, bilateral or multilateral inheritance and gift tax treaties have also been important sources of law in the course of my research.

At the EU level, I observe that the 2015 inheritance tax report is an important source of law and at the same time, it serves as the most recent reaction of the international community to the problems of cross-border inheritance and donations. In addition, the EC’s recommendation 2011/856/EU of 15 December 2011 regarding relief for double taxation of inheritances (and the accompanying documentation of the European Commission)5, the Court’s case law on EU inheritance and gift taxation as well as the Council Directives 2011/16/EU,62010/24/EU7 and 2017/1852/EU8 served as important sources of law at the EU level in the course of my research. Overall, the most important sources of law for this study are the OECD IHTMTC (and its Commentary) and the 2015 inheritance tax report as they both confirm the problems of cross-border death and gift taxation and thus, they serve as two important points of reference in this study.

Once the available sources of law are identified, the question arises how these sources should be interpreted and systemized.9 This is the core of the normative part of my research. At the OECD level, I observe that certain provisions of the OECD IHTMTC model can be improved, having regard to the objectives of the model (section 3.2.1.2) and the principles reflected in its Commentary (chapter 4). It is important to note that these principles allow me to design a theory, the so-called benchmark of the study or “the proposed inheritance and gift tax”. Having regard to the objectives of the model and the elements of the proposed inheritance and gift tax, I suggest improvements to the OECD IHTMTC and its Commentary, thereby providing an updated system for addressing problems of cross-border death and gift taxation. Fitting new – but relevant – developments into this system was closely related to the process of interpretation and systemisation.10 As a result, during my research, I considered relevant amendments to the OECD ICTMTC that have been implemented in this model since 1982. Not only have subsequent amendments to the OECD ICTMTC been taken into account when suggesting improvements to the model, but also a) existing tax treaties that the OECD member countries have agreed with each other following the suggestion of the OECD IHTMTC, and b) progressive elements of EU soft law instruments, such as the EC’s recommendation. The entire research work results in a proposal for an updated inheritance tax model (through so-called “legal engineering”11), which is included in appendix I of this study.

The research work at the EU level focuses on the interpretation and systemisation of the EC’s recommendation, the Court’s case law on EU inheritance and gift taxation and the “one inheritance – one inheritance tax” concept of the 2015 inheritance tax report. In my view, the interpretation of these sources of law enhances legal certainty at the EU level on the tools that are available for addressing the problems of cross-border inheritances and donations. This is particularly relevant for the interpretation of the “one inheritance – one inheritance tax” concept. In addition, not only the interpretation of the above sources of law but also their systemisation serves as an important outcome of the legal-doctrinal research. This is because such a systemisation safeguards, in my view, a more articulate approach in identifying the problems and addressing them. Finally, the proposals for an introduction or amendment of harmonising measures within the EU (as included in Appendices II to IV, again through “legal engineering”) serve as additional important outcomes of the legal-doctoral research.