The Principle of Legality in the Context of Danish Tax Law

17 Pages Posted: 16 May 2019 Last revised: 30 Jun 2019

See all articles by Mark Orberg

Mark Orberg

Copenhagen Business School - CBS Law

Peter Koerver Schmidt

Copenhagen Business School - CBS Law

Date Written: May 16, 2019

Abstract

The authors discuss the Danish legislator’s taxing powers in the context of the principle of legality, particularly the non-delegation doctrine enshrined in the constitution, which prescribes that no taxes shall be imposed, altered, or repealed except by statute. While a few constitutional provisions are seen as important with respect to Danish tax law, the practical significance of these provisions may at times have been overestimated in the literature. The authors explain that section 43 of the Danish constitution is the most important constitutional rule on tax as it provides a constitutional prohibition on legislative delegation in the tax area. In the view of the authors, the courts have approached the non-delegation doctrine pragmatically, accepting important modifications regarding both the practical realities of lawmaking and the long-standing practice of delegation of certain taxing powers to the municipalities. Further, the authors reject the notion that a particular requirement for a clear statutory basis for imposing tax should follow from section 43 of the constitution. Finally, the authors touch upon the recently adopted statutory general anti-avoidance rules and argue that these new provisions should not be considered unconstitutional.

Keywords: Principle of Legality, Non-delegation Doctrine, Constitutional Law, Danish Tax Law

JEL Classification: K34, K10, K40

Suggested Citation

Orberg, Mark and Koerver Schmidt, Peter, The Principle of Legality in the Context of Danish Tax Law (May 16, 2019). Copenhagen Business School, CBS LAW Research Paper No. 19-18. Available at SSRN: https://ssrn.com/abstract=3389155 or http://dx.doi.org/10.2139/ssrn.3389155

Mark Orberg (Contact Author)

Copenhagen Business School - CBS Law ( email )

Porcelaenshave 18B, 1
Frederiksberg 2000
Denmark

Peter Koerver Schmidt

Copenhagen Business School - CBS Law ( email )

Porcelaenshaven 18B, 1 floor
Frederiksberg 2000
Denmark

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