Notes
Although at first glance, the definition and delimitation of taxpayer's behavior ranging from completely permissible to tax evading seems to be an easy task, however, as shown in this paper, is far from being so. In presented document I use a term "tax planning" for defining a completely legal practice, a term "tax avoidance" for defining a disputed action which does not constitute a criminal offense, and a term "tax evasion" for defining an action which presents a criminal offense. The basic question, which had to be answered at the outset, is the question whether there is a subordination of the tax law in relation to the civil law. In presented paper, I have stated that the interpretation of the tax law is based on its own values and rules that give (in the process of establishing of a certain tax base) priority to economic effects of legal transactions prior to their legal forms. This so-called economic approach which is in German tax law reflected in Articles 39 to 42 of AO (Abgabenordnung; German tax code), while the Slovenian tax law regulates this area in each of the four paragraphs of Article 74 of the ZDavP-2 (Zakon o davčnem postopku; Slovenian tax code). Basically tax law finds and levy a real economic success and fights against false (reduced) "success", shown by some taxpayers by using sham (simulated) and avoidance transactions. Sham transaction is the one in which the statement, given to other party, by mutual agreement (i.e. with addressees consent) would not be executed. In the case of sham transaction indeed exists a conflict between what is usually possible to come out from some transaction (or event), and between what really happened. The contradiction between documents, connected with transaction on the one hand and actually identified situation (i.e. reality on the ground) on the other hand, is a cornerstone of sham transaction. What is declared does not correspond to actual events. In contrast, an avoidance of the law (fraus legis) is defined as behavior that is not directed against the strict sense of the law, but violates its meaning. Multitude of different forms of avoidance of the law, which are particularly perceived in tax, inheritance, competition, labor and corporation law, gives different variants of avoidance transaction strategies. In case of avoidance of the law there is no violation of the law in its text, but it is certainly bypassed (avoided) its content (sententia) and the legislature will (voluntas). And this is the point that delineate avoidance of the law from simulation, which is a form of violation of the law. Avoidance of the law, consequently, is to be strictly distinguished from an act of breaking the law, although both actions release the same effects. Of course, it raises the question of the demarcation between avoidance and sham transactions. It is noted that an avoidance transaction is not the same as a sham transaction, but is - like straw and fiduciary transactions - truly desired, as this is the only way to reach the intended consequences. Thus there is a need for a sharp distinction between those two forms, but it must be also emphasized that, despite the above theoretical demarcation, problems arise in practice, especially in recognizing those transactions and their distinction. In the presented paper I also present strategies and forms of sham and avoidance transactions. In the tax law it is harder than the extremes (which are tax planning on the one hand and tax evasion on the other hand) to recognize and assess a tax avoidance. All three expressions have in common only that they describe a situation in which the taxpayer seeks to reduce the tax. Tax avoidance is an unacceptable manipulation of the law, which is not the same as a legitimate tax planning, but at the same time it is not a criminal offense. By contrast, sham transaction is a conduct that is indisputably under classification of tax evasion, as a taxpayer in its tax returns gives a false statement.