In cases such as the Thin Cap GLO, the ECJ has indicated that restrictions tax measures might be permitted where the transactions was not genuinely commercial, but purely for tax objectives. In the UK courts the Thin Cap case has explored the circumstances in which a genuine commercial transaction will exist. The judgment of the ECJ in case C- 350/08 Zwijnenburg provides some insight into what will amount to a tax objective showing the rather restricted circumstances in which it will be regarded as abusive.
The benefits available under the Mergers Directive (90/434/EEC) will not apply if the principal objective or one of the principal objectives is tax avoidance or evasion. The interesting feature here is the conclusion of the court that for that exclusion to apply the tax motive must be directed to one of the specific taxes to which the Directive relates. If the transaction has the objective of avoiding or evading some other form of tax, it will not be an abusive tax structure.